Irsa Investments & Representations Inc F-3/A, filed Apr 13, 2021
Irsa Investments & Representations Inc (IRS)
F-3/A
2021-04-13
View Original
Added on
October 16, 2026
As filed with the U.S. Securities and Exchange Commission on April
13, 2021
Registration
No. 333-251905
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Pre-Effective Amendment No. 1 to
FORM
F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
IRSA Inversiones y Representaciones Sociedad
Anónima
(Exact
name of registrant as specified in its charter)
IRSA Investments and Representations Inc.
(Translation
of registrant’s name into English)
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The Republic of Argentina
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Not Applicable
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(State
or other jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification No.)
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Carlos Della Paolera 261
(C1001ADA)
Ciudad Autónoma de Buenos Aires, Argentina
Tel.
+54 (11) 4323-7400
(Address
and telephone number of registrant’s principal executive
offices)
Puglisi & Associates
850
Library Avenue
P.O.
Box 885
Newark,
DE 19715
(Name,
address and telephone number of agent for service)
Copies to:
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Jaime Mercado, Esq.Simpson Thacher & Bartlett LLP425 Lexington
AvenueNew York, New York 10017(212) 455-2000
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Approximate date of
commencement of proposed sale to the public: As soon as practicable
after the effective date of this Registration
Statement.
If only
securities being registered on this Form are being 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. ☒
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.
☐
Persons
who respond to the collection of information contained in this form
are not required to respond unless the form displays a currently
valid OMB SEC 1983 (05-19) control number.
Indicate by check
mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933. ☐ Emerging growth company
If an
emerging growth company that prepares its financial statements in
accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards†
provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
†
The term “new or revised financial accounting standard”
refers to any update issued by the Financial Accounting Standards
Board to its Accounting Standards Codification after April 5,
2012.
Calculation of Registration Fee
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Title
of each class of securitiesto be registered
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Amount
tobe registered
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Proposed
maximumaggregate price per common share
(1)(5)
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Proposed
maximumaggregate offeringprice (1)(5)
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Amount
ofregistration fee(6)
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Common shares,
Ps.1.00 par value per share (including common shares represented by
Global depositary shares) (“GDSs”) (2)(3)
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80,000,000
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$US0.396
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US$31,680,000
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$US3,456.3
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Rights to subscribe
for common shares (and GDSs)(3)(4)
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80,000,000
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None
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None
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None
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Warrants to
purchase common shares (and GDSs)(4)
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80,000,000
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None
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None
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None
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Common shares,
Ps.1.00 par value per share, and GDSs issuable upon exercise of
warrants(4)
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80,000,000
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$US0.475
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US$38,000,000
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$US4,145.8
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(1)
Proposed maximum
aggregate price per common share calculated, solely for purposes of
determining the SEC registration fee, on the basis of the closing
prices of the GDSs on the NYSE on April 9, 2021, divided by
10.
(2)
Includes common
shares that may be represented by GDSs offered and sold to holders
of GDS rights. This amount also includes common shares that are to
be offered in Argentina and elsewhere outside the United States but
may be resold from time to time in the United States during the
distribution.
(3)
GDSs issuable upon
deposit of common shares registered hereby have been registered
under a separate Registration Statement on Form F-6 (Registration
No. 333-134633).
(4)
No separate
consideration will be received by the registrant for the rights to
subscribe for common shares, the rights to subscribe for GDSs
evidencing common shares or the warrants prior to their
exercise.
(5)
Proposed maximum
aggregate price per common share calculated, solely for purposes of
determining the SEC registration fee, on the basis of 105% of the
closing prices of the GDSs on the NYSE on April 9, 2021, divided by
10.
(6)
Previously
paid.
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933, as amended, or until the Registration Statement shall become
effective on such date as the U.S. Securities and Exchange
Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration
statement filed with the U.S. Securities and Exchange Commission is
effective. This preliminary prospectus is not an offer to sell nor
does it seek to an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject to completion, dated April 13, 2021
Preliminary Prospectus
IRSA Inversiones y Representaciones Sociedad
Anónima
IRSA Investments and Representations Inc.
Rights to Subscribe for Common Shares, including Common Shares
Represented by
Global
Depositary Shares, and Warrants
We are
granting to our common shareholders rights to subscribe for
80,000,000 new common shares, together with the right to receive
80,000,000 warrants to acquire additional common shares. Each
common share held of record at 6:00 p.m. (Buenos Aires, Argentina
time) on April 16, 2021 entitles its holder to one right to
subscribe for common shares (“common share right”).
Each common share right entitles its holder to subscribe for
0.1382465082 new common shares. Each common share right will also
entitle its holder to exercise its statutory accretion rights with
respect to common shares not subscribed for by other holders of
common shares in the exercise of their respective preemptive
rights, at the same price, and to receive free of charge, for each
new common share that it purchases pursuant to this offering, one
warrant to purchase one additional common share. The Bank of New
York Mellon, as our GDS rights agent, will make available to
holders of Global Depositary Shares (“GDSs”), each of
which represents 10 common shares, rights to subscribe for new GDSs
(“GDS rights”), together with the right to receive
warrants to acquire additional common shares. Each GDS held of
record at 5:00 p.m. (New York City time) on April 16, 2021 entitles
its holder to one GDS right. Each GDS right entitles its holder to
subscribe for 0.1382465082 new GDSs. Each GDS right will also
entitle its holder to exercise its statutory accretion rights with
respect to GDSs not subscribed for by other GDS holders in the
exercise of their respective preemptive rights, at the same price,
and to receive free of charge, for each new GDS that it purchases
pursuant to this offering, 10 warrants, each of which will entitle
such holder to purchase one additional common share. Such accretion
rights shall be exercised in proportion to the number of common
shares such holder has subscribed for pursuant to the exercise of
its preemptive rights.
On
April 12, 2021, we reported to the Argentine Comisión Nacional de Valores and
the Bolsas y Mercados
Argentinos stock exchange (“BYMA”) and released
to PR Newswire a non-binding indicative subscription price for each
of the new common shares and GDSs of USD 0.36 and USD 3.60,
respectively.
The
definitive subscription price for the new common shares will be
determined by our board of directors based on the average closing
price of the GDS on the NYSE for the five to thirty preceding
trading days, dividing such result by 10, and converting the
resulting amount into Argentine Pesos on the basis of the Blue Chip
Swap Rate. Our board of directors will calculate the definitive
subscription price for our new GDSs based on the average closing
price of the GDS on the NYSE for the five to thirty preceding
trading days. The board may also apply a discount to such average
closing price, as approved by our shareholders’ meeting on
October 30, 2019. See “Summary of the
Offering—Subscription Price.”
The
subscription price for each new common share will be payable in
U.S. dollars outside Argentina or in Pesos in Argentina, determined
on the basis of the Blue Chip Swap Rate as of the second business
day prior to the expiration of the common shares subscription
period. The subscription price for each New GDS will be payable in
U.S. dollars.
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Price to the Public
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Proceeds to Company(1)
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Non-binding
indicative subscription price per new common share(2)
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USD
0.36
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USD
18.3 million
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Non-binding
indicative subscription price per new GDS(3)
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USD
3.60
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USD
10.0 million
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Rights
to subscribe for common shares and GDS rights
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USD 0.00
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USD 0.00
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Warrants(4)
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USD 0.00
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USD 0.00
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Total
offering(4)
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USD
28.3 million
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(1)
After payment of
transaction expenses by us, currently estimated at approximately
USD 0.5 million.
(2)
Corresponds to
approximately 51.8 million common shares expected to be subscribed
in Argentina, based on the non-binding indicative subscription
price of USD 0.36 for each new common share.
(3)
Corresponds to
approximately 28.2 common shares to be represented by GDSs expected
to be subscribed, each of which represents 10 common shares, based
on the non-binding indicative subscription price of USD 3.60 for
each new GDS.
(4)
No separate
consideration will be received by us for the granting of the rights
to subscribe for common shares, the rights to subscribe for GDSs or
the warrants prior to their exercise.
Investing
in our common shares, GDSs representing our common shares and our
warrants involves significant risks. See “Risk Factors”
beginning on page 16.
Neither
the U.S. Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
,
2021
Any
holder of common share rights may transfer any whole number of
common share rights. Common share rights trade on the BYMA until
May 5, 2021. The GDS rights will not be transferable.
GDSs
representing our common shares are traded on the New York Stock
Exchange (“NYSE”) under the symbol “IRS,”
and our common shares are traded on the BYMA under the symbol
“IRSA.” On April 12, 2021, the closing prices on the
NYSE per GDS and on the BYMA per common share were USD4.02 and ARS
59.60, respectively. We have applied to list the warrants on the
BYMA, and we intend to have the warrants listed on the
NYSE.
The
warrants will be exercisable after 90 days following their
issuance,
prior to their expiration on the fifth anniversary
of their issue date, during the nine-day period from and including
the
through the
day of each
,
,
and
,
on the day prior to their expiration and on their expiration date
(to the extent such dates are business days in New York City and
Buenos Aires, Argentina). The warrants will be freely transferable.
We will accept the exercise of warrants to purchase whole new
common shares. One warrant must be exercised in order to purchase
one new common share. The exercise price of
USD for
new common shares to be purchased pursuant to the exercise of
warrants will be payable in U.S. dollars. GDS holders wishing to
obtain additional GDSs upon exercise of their warrants must deposit
the common shares acquired under the warrants with The Bank of New
York Mellon, as GDS depositary (the “Depositary”), to
obtain GDSs in accordance with the terms of the deposit agreement
pursuant to which the GDSs will be issued.
We are
granting these preemptive rights to subscribe for newly issued
common shares as required under Argentine law and, although not
obligated to do so, have elected to register the common shares to
which these preemptive rights relate with the U.S. Securities and
Exchange Commission (the “SEC”) in order to extend to
our U.S. shareholders and holders of GDSs an equal opportunity to
participate in our preemptive rights offering.
The
offering of new common shares and warrants by means of rights to
holders of common shares will expire at 6:00 p.m. (Buenos Aires,
Argentina time) on May 6, 2021 (the “expiration of the common
share subscription period”). The offering of new GDSs and
warrants by means of GDS rights to holders of GDSs will expire at
5:00 p.m. (New York City time) on May 3, 2021 (the
“expiration of the GDS subscription
period”).
TABLE OF
CONTENTS
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17
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69
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No
person is authorized to give any information or to make any
representations other than those contained or incorporated by
reference in this prospectus and, if given or made, such
information or representations must not be relied upon as having
been authorized. This prospectus does not constitute an offer to
sell or the solicitation of an offer to buy securities other than
the securities described in this prospectus, or an offer to sell or
the solicitation of an offer to buy any securities in any
circumstances in which such offer or solicitation is unlawful. The
delivery of this prospectus shall not, under any circumstances,
create any implication that there has been no change in our affairs
since the date hereof, or that the information contained or
incorporated by reference herein or therein is correct as of any
time subsequent to the date of such information.
As used
in this prospectus, the terms “IRSA,” “we,”
“us” and “our” refer to IRSA Inversiones y
Representaciones Sociedad Anónima, unless we state otherwise
or the context indicates otherwise. Our headquarters are located at
Carlos Della Paolera 261, C1001ADA Buenos Aires, Argentina, our
telephone number is +54 (11) 4323-7400, and our website is
www.irsa.com.ar.
In this
prospectus, when we refer to “Peso,”
“Pesos” or “ARS” we mean Argentine pesos,
the legal currency of Argentina; and when we refer to “U.S.
dollar,” “U.S. dollars” or “USD” we
mean United States dollars, the legal currency of the United
States.
INCORPORATION BY
REFERENCE
This
prospectus incorporates important information about us that is not
included in or delivered with the prospectus. We incorporate by
reference the following documents:
●
our annual report
on Form 20-F for the year ended June 30, 2020, filed with the SEC
on November 16, 2020 (our “2020 Form
20-F”);
●
our report on Form
6-K, furnished to the SEC on January 5, 2021, containing our
(i) audited consolidated financial statements as of June 30,
2020 and 2019 and for the fiscal years ended June 30, 2020,
2019 and 2018, which have been recast to: (a) present the
audited consolidated financial statements in the measuring unit
current at the end of the reporting period as of September 30,
2020, and (b) reflect IRSA’s loss of control of IDB
Development Corporation, Ltd. (“IDBD”) and Discount
Investment Corporation, Ltd. (“DIC”) on September 25,
2020 and, consequently, the deconsolidation of such investees since
that date; and (ii) unaudited condensed interim consolidated
financial statements as of September 30, 2020 and for the
three-month periods ended September 30, 2020 and 2019 (the
“First Form 6-K”);
●
our report on Form
6-K, furnished to the SEC on April 9, 2021, containing our
unaudited condensed interim consolidated financial statements as of
December 31, 2020 and for the six-month periods ended December 31,
2020 and 2019 (the “Second Form 6-K” and, together with
the “First Form 6-K”, our “Forms 6-K”);
and
●
all subsequent
annual reports filed on Form 20-F, and all subsequent filings on
Form 6-K we file pursuant to the U.S. Securities Exchange Act of
1934, as amended (the “Exchange Act”), prior to the
termination of the offering.
Any
statement contained in any of the foregoing documents shall be
deemed to be modified or superseded for purposes of this prospectus
to the extent that a statement contained in this prospectus
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this
prospectus.
You may
request a copy of any and all of the information that has been
incorporated by reference in this prospectus, at no cost, by
writing or telephoning us at IRSA Inversiones y Representaciones
Sociedad Anónima, Carlos Della Paolera 261, C1001ADA Buenos
Aires, Argentina, Tel. +54 (11) 4323-7400.
We file
reports, including annual reports on Form 20-F, and other
information with the SEC pursuant to the rules and regulations of
the SEC that apply to foreign private issuers. You can read our SEC
filings, including the registration statement, over the internet at
the SEC’s website at www.sec.gov and at our website at
www.irsa.com.ar.
1
SUMMARY
History and Development of the Company
General Information
Our
legal and commercial name is IRSA Inversiones y Representaciones
Sociedad Anónima. We were incorporated and organized on April
30, 1943, under Argentine law as a stock corporation (sociedad anónima), and we were
registered with the Public Registry of Commerce of the City of
Buenos Aires (Inspección
General de Justicia or “IGJ”) on June 23,
1943, under number 284, on page 291, book 46 of volume A. Pursuant
to our bylaws, our term of duration expires on April 5,
2043.
Our
common shares are listed and traded on the BYMA and our GDSs
representing our common shares are listed on the New York Stock
Exchange (“NYSE”). Our headquarters are located at
Carlos M. Della Paolera 261, Ciudad Autónoma de Buenos Aires
(C1001ADA), Argentina. Our telephone is +54 (11) 4323-7400. Our
website is www.irsa.com.ar. Information contained in or accessible
through our website is not a part of this Prospectus.
We
assume no responsibility for the information contained on these
sites. The depositary for the GDS facility in the United States is
The Bank of New York Mellon whose address is 240 Greenwich Street,
New York, NY 10286, and whose telephone numbers are +1-888-BNY-ADRS
(+1-888-269-2377) for U.S. calls and +1-201-680-6825 for calls
outside U.S.
Business Overview
Operations and principal activities
Founded
in 1943, IRSA Inversiones y Representaciones Sociedad Anónima
is one of Argentina’s leading real estate companies and the
only Argentine real estate company whose shares are listed both on
BYMA and on the NYSE.
We are
engaged, directly and indirectly through subsidiaries and joint
ventures, in a range of diversified activities, primarily in real
estate, including:
i. the
acquisition, development and operation of shopping
malls,
ii. the
acquisition and development of office buildings and other
non-shopping mall properties primarily for rental
purposes,
iii.
the development and sale of residential properties,
iv. the
acquisition and operation of luxury hotels,
v. the
acquisition of undeveloped land reserves for future development or
sale, and
vi.
selective investments outside Argentina.
We
operate our business in Argentina through seven segments, namely
“Shopping Malls,” “Offices,” “Sales
and Developments,” “Hotels,”
“International.” “Corporate” and
“Others” as further described below:
Our
“Shopping Malls” segment includes the operating results
from our portfolio of shopping malls principally comprised of lease
and service revenue from tenants. Our Shopping Malls segment had
assets of ARS 54,593 million and ARS 58,703 million as of December
31, 2020 and 2019, respectively, representing 29.53% and 42.14% of
our operating assets for the Operations Center in Argentina at such
dates, respectively. Our Shopping Malls segment generated operating
loss of ARS 3,966 million and an operating income of ARS 984
million for the fiscal years ended December 31, 2020 and 2019,
respectively.
2
Our
“Offices” segment includes the operating results from
lease revenues of offices, other rental spaces and other service
revenues related to the office activities. Our Offices segment had
assets of ARS 70,222 million and ARS 42,600 million as of December
31, 2020 and 2019, respectively, representing and 37.99% and 30.58%
of our operating assets for the Operations Center in Argentina at
such dates, respectively. Our Offices segment generated an
operating income of ARS 8,558 million and an operating income of
ARS 5,679 million for the fiscal years ended December 31, 2020 and
2019, respectively.
Our
“Sales and Developments” segment includes the operating
results of the development, maintenance and sales of undeveloped
parcels of land and/or trading properties. Real estate sales
results are also included. Our Sales and Developments segment had
assets of ARS 45,971 million and ARS 36,816 million as of December
31, 2020 and 2019, respectively, representing 24.87% and 26.43% of
our operating assets for the Operations Center in Argentina. Our
Sales and Developments segment generated an operating income of ARS
5,442 million and ARS 3,447 million for the financial years ended
December 31, 2020 and 2019, respectively.
Our
“Hotels” segment includes the operating results of our
hotels mainly comprised of room, catering and restaurant revenues.
Our Hotels segment had assets of ARS 2,133 million and ARS 2,250
million as of December 31, 2020 and 2019, respectively,
representing 1.15% and 1.62% of our operating assets for the
Operations Center in Argentina, respectively. Our Hotels segment
generated an operating loss of ARS 410 million and an operating
income of ARS 328 million for the fiscal years ended December 31,
2020 and 2019, respectively.
Our
“International” segment includes investments that
mainly operate in the United States in relation to the lease of
office buildings and hotels in that country. We intend to continue
evaluating investment opportunities outside Argentina as long as
they are attractive investment and development options. Our
International segment had assets of ARS 1,969 million and net
liabilities of ARS 9,886 million as of December 31, 2020 and 2019,
respectively. Our International segment generated operating loss of
ARS 3 million and ARS 75 million for the fiscal years ended
December 31, 2020 and 2019, respectively.
Our
“Corporate” segment. Since fiscal year 2018, we have
decided to disclose certain corporate expenses related to the
holding structure in a separate “Corporate” segment.
This segment generated a loss of ARS 325 million and ARS 317
million for the fiscal years ended December 31, 2020 and 2019,
respectively.
Our
“Others” Segment includes the entertainment activities
through La Arena and La Rural S.A. and the financial activities
carried out by Banco Hipotecario for both. Our “Others”
segment had assets of ARS 9,972 million and ARS 8,817 million as of
December 31, 2020 and 2019, respectively, representing 5.39 and
6.33% of our operating assets for the Operations Center in
Argentina, respectively. Our Others segment generated an operating
income of ARS 473 million and of ARS 244 million for the fiscal
years ended December 31, 2020 and 2019, respectively.
3
SUMMARY OF THE
OFFERING
This summary highlights material information appearing elsewhere in
this prospectus or incorporated by reference. While this summary
highlights what we consider to be the most important information
about us and the offering, before investing in our common shares,
the GDSs or our warrants you should carefully read in its entirety
this prospectus, the documents incorporated herein by reference and
the registration statement of which this prospectus forms a part,
including the information set forth under “Risk
Factors” and “Operating Review and Prospects” and
our financial statements and related notes in our 2020 Form 20-F
and our Forms 6-K. See “Incorporation by Reference” and
“Where You Can Find More Information.”
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Offering of common
share rights and GDS rights
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We are
granting to our common shareholders rights (“common share
rights”) to subscribe for 80,000,000 new common shares and
80,000,000 warrants to acquire additional common shares. Each
common share held of record at 6:00 p.m. (Buenos Aires City time)
on April 16, 2021 entitles its holder to one common share right.
Each common share right will entitle its holder to subscribe for
0.1382465082 new common shares and to receive free of charge, for
each new common share that it purchases pursuant to this offering,
one warrant to purchase one additional common share.
The
Bank of New York Mellon, as our GDS rights agent, will make
available to holders of GDSs the GDS rights to subscribe for new
GDSs and warrants to acquire additional common shares that may be
deposited for delivery of GDSs. Each GDS held of record at 5:00
p.m. (New York City time) on April 16, 2021 entitles its holder to
one GDS right. Each GDS right will entitle its holder to subscribe
for 0.1382465082 new GDSs and to receive free of charge, for each
new GDS that it purchases pursuant to this offering, 10 warrants,
each of which will entitle such holder to purchase one additional
common share.
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4
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Subscription period
for the common share rights and GDS rights
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From
April 19, 2021, through 6:00 p.m. (Buenos Aires City time) on May
6, 2021, in the case of the common share rights (the “common
shares subscription period”) and from April 19, 2021, through
5:00 p.m. (New York City time) on May 3, 2021, in the case of the
GDS rights (the “GDS subscription
period”).
To
exercise common share rights, you must deliver to our common shares
agent a properly completed subscription form accompanied by a
certificate of ownership issued by the Caja de Valores or evidence of
assignment of the common share rights in your favor by 6:00 p.m.
(Buenos Aires City time) on May 6, 2021, or your common share
rights will lapse and will have no further value. Deposit in the
mail will not constitute delivery to us.
To
exercise the GDS rights, you must (i) instruct your broker or other
securities intermediary to exercise GDS rights on your behalf and
pay the amount specified below for each GDSs subscribed or sought
pursuant to accretion rights through the automated system of The
Depository Trust Company (“DTC”) (in the case of GDS
rights held through DTC) or (ii) deliver to the GDS rights agent a
properly completed GDS rights subscription form and pay the amount
specified below for each GDS subscribed or sought pursuant to
accretion rights by personal or business check (in the case of GDSs
held directly on the books of the Depositary). In either case, the
subscription and payment must be received by the GDS rights agent
by 5:00 p.m. (New York City time) on May 3, 2021. Your broker or
other securities intermediary will set an earlier cutoff date and
time to receive your instructions to subscribe.
If you
do not exercise your GDS rights, the Depositary will try to sell
the underlying share rights in the Argentine market. If the
Depositary is successful in selling those share rights, it expects
to receive Argentine pesos and will hold the net proceeds in
Argentine pesos for your account. However, under current Argentine
laws and regulations, the Depositary would not be able to convert
those pesos into U.S. dollars and thus would be unable to pay those
proceeds to you. If the Depositary receives payment in U.S. dollars
or is able to convert Argentine pesos into U.S. dollars, it will
convert the sales proceeds into dollars, if applicable, and pay you
your share, after deduction of applicable fees and
expenses.
The exercise of common share rights and GDS rights is irrevocable
and may not be canceled or modified.
|
5
|
Accretion
rights
|
Concurrently
with the exercise of their common share rights, holders of common
shares may exercise their statutory accretion rights with respect
to common shares not subscribed for by other holders of common
shares in the exercise of their respective preemptive rights, by
indicating the maximum number of additional common shares they
would like to purchase pursuant to their accretion rights, which
shall not exceed the amount of common shares subscribed for by such
holder in the exercise of its preemptive rights. Common shares
relating to such accretion rights will be allocated to each
exercising holder of common shares that has requested additional
shares through the exercise of accretion rights pro rata based on
the ratio between the number of common shares available and the
aggregate permissible amount sought by subscribing
holders.
Concurrently
with the exercise of their preemptive rights, GDS holders that
subscribe for new GDSs pursuant to their GDS rights may indicate to
their securities intermediary or on their subscription forms a
number of additional GDSs for which they would be willing to
subscribe pursuant to their accretion rights, which shall not
exceed the number of new GDSs subscribed for by such holder in the
exercise of its preemptive rights. If accretion rights are
allocated to the Depositary, the GDS rights agent will allocate
additional GDSs to GDS holders that requested them. If the amount
of additional GDSs available pursuant to accretion rights are
insufficient to satisfy all requests, we will allocate the
available additional GDSs among requesting GDS holders pro rata
based on the ratio between the number of GDSs available and the
aggregate permissible amount sought by subscribing
holders.
On May
7, 2021, which is one business day after the end of the common
shares subscription period, we will notify holders of common share
rights and GDS holders who have indicated that they wish to
exercise their accretion rights of the aggregate number of
unsubscribed common shares and GDSs, as applicable, by publication
of a notice in the bulletin of the Buenos Aires Stock Exchange and
the CNV website. Based on this notice, we will allocate
unsubscribed common shares to holders of common share rights and
GDSs to GDS holders, as applicable, in accordance with the
procedure described above.
|
|
Results
of the offering
|
On May
10, 2021, which is the second Argentine business day after the end
of the common shares subscription period, we will notify holders of
common share rights and GDS holders by publication of a notice in
the bulletin of the Buenos Aires Stock Exchange and PR Newswire of
the final results of the offering pursuant to common share rights
and GDS rights.
|
6
|
Subscription
price
|
On
April 12, 2021, we reported to the Argentine Comisión Nacional de Valores and
BYMA and released to PR Newswire a non-binding indicative
subscription price for each of the new common shares and GDSs of
USD 0.36 and USD 3.60, respectively.
The
definitive subscription price for the new common shares will be
determined by our board of directors based on the average closing
price of the GDS on the NYSE for the five to thirty preceding
trading days, dividing such result by 10, and converting the
resulting amount into Argentine Pesos on the basis of the Blue Chip
Swap Rate. Our board of directors will calculate the definitive
subscription price for our new GDSs based on the average closing
price of the GDS on the NYSE for the five to thirty preceding
trading days. The board may also apply a discount to such average
closing price, as approved by our shareholders’ meeting on
October 30, 2019.
On
October 30, 2019, our shareholders’ meeting authorized our
board of directors to apply a discount of up to 10% of the current
trading price of our common shares and the GDSs when determining
the indicative and definitive subscription price of the new common
shares and the new GDSs. Our shareholders’ meeting also
authorized our board of directors to apply a discount of up to 15%
of the price determined pursuant to the guidelines approved by the
shareholders if required by market conditions at the time of
determining the price, in the discretion of our board of
directors.
|
|
|
The
subscription price for each new common share will be payable in
U.S. dollars outside Argentina or in Pesos in Argentina, determined
on the basis of the Blue Chip Swap Rate as of the second business
day prior to the expiration of the common shares subscription
period.
The
subscription price for each new GDS will be payable in U.S.
dollars. Holders of GDSs must deposit USD 3.78 per New GDS
subscribed for or sought (the “Deposit Amount”). which
is equal to 105% of the indicative subscription price. This extra
five percent allowance will be used to cover the Depositary's
issuance fee of $0.05 per new GDS and any other applicable fees or
expenses, and then will be applied to the final subscription
price.
If the
Deposit Amount exceeds the sum of the final subscription price plus
the Depositary’s issuance fee and any other applicable fees
and expenses, the Depositary will refund the surplus to the
exercising GDS holders as soon as practicable after closing of the
rights offering. If the Deposit Amount is less than the sum of the
final subscription price plus the Depositary’s issuance fee
and any other applicable fees and expenses, the GDS rights agent
will notify the GDS holder of the amount of the shortfall, and the
GDS holder must fund that shortfall as no event later than the day
on which the GDS rights agent is required to make payment to the
Company. If the
shortfall is not funded, the GDS rights agent may withhold and sell
a portion of the new GDSs to cover that shortfall or reduce the
number of new GDSs subscribed.
|
7
|
Payment
for exercise ofpreemptive rights
|
The new
common shares subscribed pursuant to the common share rights must
be paid in cash or by wire transfer to the common shares agent no
later than 6:00 p.m. (Buenos Aires time) on May 6, 2021, which is
the last business day of the common shares subscription
period.
The
Deposit Amount for the new GDSs subscribed pursuant to the GDS
rights must be paid by the GDS holder’s broker or other
securities intermediary through the DTC system or, in the case of
GDSs held directly on the Depositary’s books, by personal or
business check to the GDS rights agent no later than 5:00 p.m. (New
York City time) on May 3, 2021, which is the last business day of
the GDS subscription period. Upon advance request, the GDS rights
agent will make arrangements so that the Deposit Amount may be paid
by wire transfer.
|
|
Payment
for exercise ofaccretion rights
|
The new
common shares subscribed pursuant to the accretion rights must be
paid by wire transfer or by certified or official bank check or
money order to the common share rights agent no later than 6:00
p.m. (Buenos Aires time) on May 6, 2021.
The
Deposit Amount for new GDSs sought pursuant to the accretion rights
must be paid at the same and in the same manner, as payment with
respect to the exercise of GDS rights.
|
|
Fractional common
shares and GDSs
|
We will
accept subscriptions for whole new common shares and new GDSs only
and will round down any subscription submitted for fractional new
common shares and fractional new GDSs to the nearest whole number
of new common shares or new GDSs, as applicable.
|
8
|
Use of
unsubscribed GDSsand common shares
|
After
expiration of the common shares subscription period and the GDS
subscription period, we may cancel the unsubscribed common shares
or sell them to third parties at such times as our board of
directors may determine. The price for such sales may not be more
favorable to the purchaser than the price offered herein. We
currently intend to offer any unsubscribed common shares to the
public promptly after completion of this offering.
|
|
Issuance and
delivery of new common shares and new GDSs
|
The new
common shares and warrants acquired pursuant to the preemptive
rights will be issued and made available within five business days
following the expiration of the common shares subscription
period.
The new
GDSs and warrants acquired pursuant to the preemptive rights will
be issued and made available as soon as practicable after the new
common shares are deposited with the Depositary’s custodian
in Argentina.
The new
common shares acquired pursuant to the accretion rights will be
issued and made available within five business days following the
expiration of the common shares subscription period.
The new
GDS acquired pursuant to the accretion rights will be issued and
made available as soon as practicable after the new common shares
are deposited with the Depositary’s custodian in
Argentina.
We will
register new common shares issued upon exercise of common share
rights and related warrants in our share register as soon as
practicable after our receipt of payment with respect to such
exercise. Certificates representing the new common shares will be
issued upon request.
New
GDSs will be delivered through the facilities of DTC to the
securities accounts that exercised the GDS rights or, in the case
of GDSs held directly on the Depositary’s books, by
registration of new GDSs on an uncertificated basis in the name of
the exercising GDS holder.
|
|
Transferability
|
Any
holder of common share rights may transfer its common share rights.
Common share rights will be eligible to trade on the BYMA from
April 15, 2021 to May 5, 2021 but will not be eligible to trade on
any securities exchange in the United States.
The GDS
rights will not be transferable.
|
9
|
Combined
offering
|
In
connection with this rights offering, we intend to offer the
unsubscribed common shares, if any, in the form of GDSs in the
United States and other jurisdictions outside Argentina, provided
certain conditions are met and our board of directors approves such
subsequent offering. The price for such sale may not be more
favorable for the purchaser than the price offered
herein.
|
|
No
exchanges of common share rights or GDS rights
|
You may
not surrender GDS rights for the purpose of withdrawing rights to
subscribe for common shares or deposit common share rights to
obtain GDS rights.
|
|
Listing
of common shares
|
The
common shares are listed on the BYMA under the symbol
“IRSA.” We have requested authorization to list the new
common shares rights underlying the rights on the
BYMA.
|
|
Listing
of GDSs
|
The
GDSs are listed on the New York Stock Exchange under the symbol
“IRS.” We have requested authorization to list the new
GDSs issuable pursuant to the GDS rights on the NYSE.
|
|
GDS
rights agent
|
The
Bank of New York Mellon
|
|
Common
share rights agent
|
BACS
Banco de Crédito y Securitización S.A.
|
|
Depositary
|
The
Bank of New York Mellon
|
|
Information
Agent
|
Morrow
Sodali Global LLC
|
|
Blue
Chip Swap Rate
|
The
implied exchange rate between Pesos and U.S. dollars that results
from dividing the closing price of IRSA’s common shares on
ByMA as of a certain date by the closing price of IRSA’s GDSs
on NYSE as of that same date, further divided by ten.
|
|
The
Warrants
|
|
|
Maximum
number of warrants
|
We will
issue up to a maximum of 80,000,000 warrants, assuming all of the
common shares and GDS available for purchase in this rights
offering are purchased.
We will
issue, free of charge:
● One warrant to each
holder of our common share rights for each new common share it
purchases in the common share rights offering; and
● Ten warrants to
each GDS rights holder for each new GDS it purchases in the GDS
rights offering.
|
10
|
Exercise of the
warrants
|
To
exercise the warrants, you must deliver to the warrant agent a
properly completed purchase form, accompanied by a certificate of
ownership, if any, and full payment of the exercise price by 5:00
p.m. (New York City time) during the exercise periods referred to
below.
The
warrants will be exercisable after 90 days following their
issuance, prior to their expiration on the fifth anniversary of
their issue date, during the nine-day period from and including the
through the
day of each
,
,
and
,
on the day prior to their expiration and on their expiration date
(to the extent such dates are business days in New York City and
Buenos Aires, Argentina). The warrants will be freely transferable.
We will accept the exercise of warrants to purchase whole new
common shares. One warrant must be exercised in order to purchase
one new common share.
GDS
holders wishing to obtain additional GDSs upon exercise of their
warrants must deposit the common shares acquired under the warrants
with The Bank of New York Mellon, as our Depositary, to obtain GDSs
in accordance with the terms of the deposit agreement.
Unexercised
warrants will not entitle their holders to any rights to vote at or
attend our shareholders meetings or to receive any dividends in
respect of our common shares. The number of our common shares for
which, and the price at which, a warrant is exercisable are subject
to adjustment upon the occurrence of certain events, as provided in
the warrant agreement relating to the warrants.
We will
accept exercises of warrants for whole, new common shares only and
will round down any warrant exercise submitted for fractional, new
common shares to the nearest whole number of new common
shares.
|
|
Exercise
price
|
Each
warrant will entitle its holder to purchase one additional common
share for an exercise price of
USD per
common share that will be payable in U.S. dollars.
If, as
of the payment date of the warrant exercise price, payment in U.S.
dollars is legally prevented in Argentina, holders of warrants will
be entitled to pay the exercise price directly to us, in Pesos in
an amount equal to the Peso equivalent of the U.S. dollar exercise
price of the warrants determined on the basis of Blue Chip Swap
Rate on the business day preceding the payment date of the exercise
price of the warrants.
|
|
Expiration of
warrants
|
The
warrants will expire automatically and become void on
,
.
|
|
Transferability
|
Any
holder of warrants may transfer its warrants at any time after the
date of issuance. Warrants will be eligible to trade on the BYMA
and we intend to have the warrants listed on the NYSE.
|
11
|
Shelf
registration
|
We have
agreed that until the earlier to occur of the exercise or
expiration of all the warrants, we will keep a registration
statement current with respect to the issuance of our common shares
from time to time upon exercise of the warrants.
|
|
Listing
|
We have
applied to have the warrants listed on the BYMA. We intend to have
the warrants listed on the NYSE.
|
|
Warrant
agent
|
Computershare,
Inc. and Computershare Trust Company, N.A.
|
|
Representative of
the warrant agent in Argentina
|
BACS
Banco de Crédito y Securitización S.A.
|
|
General
|
|
12
|
Use of
proceeds
|
We
currently expect the net proceeds from our rights offering to be
approximately
USD
million after payment of estimated expenses (assuming all of the
common shares and GDSs available for purchase in this rights
offering will be purchased, and that none of the warrants will be
exercised upon consummation of this offering).
We
intend to use the proceeds of the offering as follows:
● acquisitions or
investments in our line of business in Argentina, Latin America
and/or other countries to the extent we believe such acquisitions
or investments are consistent with our business
strategy;
● investments in
subsidiaries, mainly in IRSA Propiedades Comerciales, through
capital contributions and/or acquisition of shares;
and
● repayment of debt,
working capital and for other general corporate
purposes.
The
amount of proceeds we will receive from this offering will depend
on the extent to which our shareholders elect to exercise their
rights to subscribe for new common shares. The extent to which our
shareholders elect to do so is beyond our control and cannot be
predicted with certainty. If a significant percentage of our
shareholders do not exercise their rights to subscribe for new
common shares, our net proceeds could be materially less than the
amount indicated above (which assumes that 100% of the common
shares and GDSs available for purchase will be
purchased).
Although
we are constantly evaluating investment opportunities, at this time
we do not have any binding commitment to make any material
investments not identified in this prospectus. Because several of
the proposed investments above are uncertain at this time, the net
proceeds from this offering may not be fully used in the short
term. Until those investments are made, we intend to invest the net
proceeds of this offering in high quality, liquid financial
instruments. The allocation of the net proceeds from this offering
will be influenced by prevailing market conditions from time to
time, and as a result, we reserve the right to reallocate all or a
portion of such anticipated uses to other uses we deem consistent
with our strategy.
|
|
Outstanding common
shares immediately before and after the preemptive rights
offering
|
Immediately
prior to this preemptive rights offering, our outstanding capital
stock consists of approximately 578,676,460 common
shares.
Immediately
after this preemptive rights offering, a total of
common
shares are expected to be outstanding (assuming all of the new
common shares and GDSs available for purchase in this rights
offering are purchased, and that none of the warrants are
immediately exercised upon consummation of this
offering).
|
13
|
Dividends
|
Under
Argentine law, the declaration, payment and amount of dividends on
the common shares are subject to the approval of the our
shareholders and to certain requirements of Argentine law. Pursuant
to the deposit agreement, holders of GDSs will be entitled to
receive dividends, if any, declared on the common shares
represented by such GDSs to the same extent as the holders of the
common shares. Cash dividends will be paid in Pesos and, subject to
applicable Argentine laws, regulations and approvals, to the extent
that the Depositary can in its judgment convert Pesos (or any other
foreign currency) into U.S. dollars on a reasonable basis and
transfer the resulting U.S. dollars to the United States, will be
paid to the holders of GDSs net of any dividend distribution fees,
currency conversion expenses, taxes or governmental charges. See
“Description of Capital Stock” and “Description
of Global Depositary Receipts.”
|
|
Voting
Rights
|
Holders
of our common shares are entitled to one vote for each common share
at any of our shareholders’ meeting. See “Description
of Capital Stock.” Pursuant to the deposit agreement and
subject to Argentine law and our bylaws, holders of GDSs are
entitled to instruct the Depositary to vote or cause to be voted
the number of common shares represented by such GDSs. See
“Description of Global Depositary
Receipts.”
|
|
Termination,
cancellation and amendment
|
We may terminate or cancel the offering in our sole
discretion at any time on or before the expiration of the common
shares subscription period for any reason (including, without
limitation, a change in the market price of our common shares or
the GDSs). If the offering is terminated, all rights will expire
without value and we will promptly arrange for the refund, without
interest or deduction, of all funds received from holders of common
share and GDS rights. Any termination or cancellation of the rights
offering will be followed as promptly as practicable by an
announcement. We may amend or modify the terms of the rights
offering, and may extend the expiration date of the rights
offering.
|
14
|
Information
|
Any
questions or requests for assistance may be directed
to:
BACS
Banco de Crédito y Securitización S.A., our common share
rights agent, at Tucumán 1, 19th Floor,
“A”, City of Buenos Aires, Argentina, or by calling +
54 (11) 4329-4200, in the case of holders of our common
shares,
Morrow
Sodali, our information agent, at 509 Madison Avenue, Suite 1608,
New York, NY 10022, or by calling (203) 561-6945 (banks and
brokers); (800) 662-5200 (stockholders call toll free);
e-mail: IRS@investor.morrowsodali.com;
or
IRSA
Inversiones y Representaciones Sociedad Anónima, Carlos Della
Paolera 261, C1001ADA Buenos Aires, Argentina, or by calling +54
(11) 4323-7400.
For
additional information concerning the common shares, the GDSs and
the warrants, see “Description of Capital Stock,”
“Description of Global Depositary Receipts” and
“Description of Warrants.”
|
|
Risk
factors
|
See
“Risk Factors” in our 2020 Form 20-F for a discussion
of certain significant risks you should consider before making an
investment decision.
|
|
Business
day
|
Any
day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in New York
City, United States of America, or Buenos Aires, Argentina, are
authorized or required by law to remain closed.
|
|
Timetable
for the Offering
|
|
|
Common
shares record date 6:00 p.m. (Buenos Aires, Argentina
time)
|
April
16, 2021
|
|
GDS
record date 5:00 p.m. (New York City time)
|
April
16, 2021
|
|
Common
share rights commence trading on the BYMA
|
April
15, 2021
|
|
Common
shares subscription period
|
April
19, 2021 to May 6, 2021
|
|
GDS
subscription period
|
April
19, 2021 to May 3, 2021
|
|
Publication of the
definitive subscription price for the new common shares and the new
GDSs
|
On or
about April 26, 2021
|
15
|
Expiration date for
holdersof GDS rights
|
May 3,
2021
|
|
End of
common share rights trading on the BYMA
|
May 5,
2021
|
|
Expiration date of
common shares subscription period
|
May 6,
2021
|
|
Allocation of
accretion rights
|
May 7,
2021
|
|
Delivery date for
new common shares pursuant to common share preemptive
rights
|
Within
five business days of the expiration date of the common shares
subscription period
|
|
Delivery date for
new common shares pursuant to common share accretion
rights
|
Within
five business days of the expiration date of the common shares
subscription period
|
|
Delivery date for
the new GDS pursuant to GDS preemptive rights
|
As
promptly as practicable after the delivery of the new common shares
pursuant to common share preemptive rights
|
|
Delivery date for
the new GDS pursuant to GDS accretion rights
|
As
promptly as practicable after the delivery of the new common shares
pursuant to common share accretion rights
|
16
RISK
FACTORS
You should carefully consider the risks described below, in
addition to the other information contained in this prospectus,
including our 2020 Form 20-F and our Forms 6-K, before making an
investment decision. We also may face additional risks and
uncertainties that are not presently known to us, or that we
currently deem immaterial, which may impair our business. In
general, you take more risk when you invest in the securities of
issuers in emerging markets such as Argentina than when you invest
in the securities of issuers in the United States. You should
understand that an investment in our common shares, GDSs and
warrants involves a high degree of risk, including the possibility
of loss of your entire investment.
Risks Relating to the Common Share Rights, the GDS Rights and to
the GDSs, Common Shares and Warrants
You will experience immediate and substantial dilution in the book
value of the common shares or GDSs you purchase in this
offering.
Because
the offering price of the common shares and GDSs being sold in this
offering will be substantially higher than the net tangible book
value per share, you will experience immediate and substantial
dilution in the book value of these common shares. Net tangible
book value represents the amount of our tangible assets on a pro
forma basis, minus our pro forma total liabilities. Moreover, if
you do not exercise your common share rights or GDS rights, as the
case may be, you will also experience immediate and substantial
dilution in the book value of your common shares or GDSs. See
“Dilution.”
The market price for the GDSs could be highly volatile, and the
GDSs could trade at prices below the initial offering
price.
The
market price for the GDSs after this offering is likely to
fluctuate significantly from time to time in response to factors
including:
●
fluctuations in our
periodic operating results;
●
changes in
financial estimates, recommendations or projections by securities
analysts;
●
changes in
conditions or trends in our industry;
●
changes in the
economic performance or market valuation of our
competitors;
●
announcements by
our competitors of significant acquisitions, divestitures,
strategic partnerships, joint ventures or capital
commitments;
●
events affecting
equities markets in the countries in which we operate;
●
legal or regulatory
measures affecting our financial conditions;
●
departures of
management and key personnel; or
●
potential
litigation or the adverse resolution of pending litigation against
us or our subsidiaries.
Volatility in the
price of the GDSs may be caused by factors outside of our control
and may be unrelated or disproportionate to our operating results.
In particular, announcements of potentially adverse developments,
such as proposed regulatory changes, new government investigations
or the commencement or threat of litigation against us, as well as
announced changes in our business plans or those of competitors,
could adversely affect the trading price of our common shares,
regardless of the likely outcome of those developments or
proceedings. Broad market and industry factors could adversely
affect the market price of the GDSs, regardless of our actual
operating performance. As a result, the GDSs may trade at prices
significantly below the initial public offering price.
17
The warrants are exercisable under limited circumstances and will
expire.
Each
warrant will be exercisable only if the common share rights or GDS
rights to which such warrant relates have been exercised, and such
warrant will be exercisable after
days
following its issuance at any time prior to its expiration on the
fifth anniversary of its issue date, quarterly on dates we will
announce to the Argentine Comisión Nacional de Valores and
BYMA and release to PR Newswire on or about April 26,
2021.
If we are considered to be a passive foreign investment company for
United States federal income tax purposes, U.S. holders of our
common shares, GDSs, common share rights, GDS rights or warrants
may suffer negative consequences.
Based
on the past and projected composition of our income and assets, and
the valuation of our assets, we do not believe we were a passive
foreign investment company (a “PFIC”) for United States
federal income tax purposes for our most recent taxable year, and
do not expect to become a PFIC in the current taxable year or the
foreseeable future, although there can be no assurance in this
regard. The determination of whether we are a PFIC is made
annually. Accordingly, it is possible that we may become a PFIC in
the current or any future taxable year due to changes in our asset
or income composition. In addition, this determination is based on
the interpretation of certain United States Treasury regulations
relating to rental income, which regulations are potentially
subject to differing interpretation. If we become a PFIC, U.S.
Holders (as defined in “Taxation—Certain United States
Federal Income Tax Consequences”) of our common shares, GDSs,
common share rights, GDS rights or warrants will be subject to
certain United States federal income tax rules that may have
negative consequences. See “Taxation— Certain United
States Federal Income Tax Consequences—Passive Foreign
Investment Company” for a more detailed discussion of the
consequences if we are deemed a PFIC. You should consult your own
tax advisors regarding the application of the PFIC rules to your
particular circumstances.
18
USE OF
PROCEEDS
We
currently expect the net proceeds from our rights offering to be
approximately
USD million
after payment of estimated expenses (assuming all of the common
shares and GDSs available for purchase in this rights offering will
be purchased, and that none of the warrants will be exercised upon
consummation of this offering).
We
intend to use the proceeds of the offering as follows:
●
acquisitions or
investments in our line of business in Argentina, Latin America
and/or other countries to the extent we believe such acquisitions
or investments are consistent with our business
strategy;
●
investments in
subsidiaries, mainly in IRSA Propiedades Comerciales, through
capital contributions and/or acquisition of shares;
and
●
repayment of debt,
working capital and for other general corporate
purposes.
The
amount of proceeds we receive from this offering will depend on the
extent to which our shareholders elect to exercise their rights to
subscribe for new common shares. The extent to which our
shareholders elect to do so is beyond our control and cannot be
predicted with certainty. If a significant percentage of our
shareholders do not exercise their rights to subscribe for new
common shares, our net proceeds could be materially less than the
amount indicated above (which assumes that 100% of the common
shares and GDSs available for purchase will be
purchased).
Although we are
constantly evaluating investment opportunities, at this time we do
not have any binding commitment to make any material investments
not identified in this prospectus. Because several of the proposed
investments above are uncertain at this time, the net proceeds from
this offering may not be fully used in the short term. Until those
investments are made, we intend to invest the net proceeds of this
offering in high quality, liquid financial instruments. The
allocation of the net proceeds from this offering will be
influenced by prevailing market conditions from time to time, and
as a result we reserve the right to reallocate all or a portion of
such anticipated uses to other uses we deem consistent with our
strategy.
19
CAPITALIZATION
The
following table sets forth our consolidated capitalization in
accordance with IFRS as of December 31, 2020 and as adjusted to
give the effect of the sale of 80,000,000 common shares assuming a
hypothetical subscription price of ARS 54.4 per common share. The
table below should be read in conjunction with, and is qualified in
its entirety by “Operating Review and Prospects” and
our financial statements included in our 2020 Form 20-F and our
Forms 6-K.
|
|
As
of December 31, 2020
|
|
|
|
Actual
|
As
adjusted (1)
|
|
|
(millions
of ARS)
|
|
|
Total current
borrowings
|
14,531
|
14,531
|
|
Total non-current
borrowings
|
40,942
|
40,942
|
|
Total
debt(2)
|
55,473
|
55,473
|
|
|
|
|
|
Shareholders’
equity
|
|
|
|
Attributable to
equity holders of the parent:
|
|
|
|
Share
capital
|
575
|
655
|
|
Treasury
stock
|
2
|
2
|
|
Inflation
adjustment of share capital and treasury stock
|
16,335
|
16,335
|
|
Share
premium/warrants (5)
|
17,426
|
21,656
|
|
Additional paid-in
capital from treasury stock
|
116
|
116
|
|
Legal reserve
(3)
|
1,333
|
1,333
|
|
Special reserve
(4)
|
11,271
|
11,271
|
|
Other
reserve
|
23,522
|
23,522
|
|
Retained
earnings
|
(473)
|
(473)
|
|
Attributable to
non-controlling interest:
|
|
|
|
Non-controlling
interest
|
22,174
|
22,174
|
|
Total
shareholders’ equity
|
92,281
|
96,591
|
|
Total
capitalization
|
147,754
|
152,064
|
|
(1)
|
Assumes
net proceeds of the rights offering of USD28.3 million resulting
from the issuance of 80,000,000 common shares, net of expenses,
related to the rights offering.
|
|
(2)
|
All of
our total debt is unsecured.
|
|
(3)
|
Under
Argentine law, we are required to allocate 5% of our net income to
a legal reserve until the amount of such legal reserve equals 20%
of our outstanding capital.
|
|
(4)
|
Pursuant to a
resolution of the Inspección
General de Justicia, companies should indicate the intended
use of the accumulated retained earnings balance of the period.
Accordingly, we transferred the balance of accumulated retained
earnings to a special reserve labeled as “Reserve for New
Developments.” This reclassification has no impact on our
total shareholders’ equity.
|
|
(5)
|
Warrants granted in
this rights offering have been included in shareholders’
equity. As provided under IFRS, these instruments can be classified
either as equity or as liabilities, depending on their
characteristics.
|
20
DIVIDEND
POLICY
See
“Dividend Policy” in our 2020 Form 20-F.
EXCHANGE RATES AND EXCHANGE
CONTROLS
See
“Local Exchange Market and Exchange Rates” in our Forms
6-K.
21
THE
OFFERING
Statutory Preemptive and Accretion Rights
Pursuant to our
bylaws and as required by Argentine law, each existing holder of
our common shares has the following rights:
●
a preemptive right
to subscribe for new shares in all issues of common shares in
proportion to such shareholder’s respective shareholdings,
and
●
an accretion right
which provides that if any new common shares are not subscribed for
by our shareholders pursuant to their preemptive rights, the
shareholders which have exercised their preemptive rights are
entitled to subscribe for such unsubscribed common shares in
proportion to the number of new common shares purchased by such
exercising shareholders pursuant to their exercise of preemptive
rights.
On
October 30, 2019, our shareholders authorized the future issuance
of up to 200,000,000 common shares. We are granting to our
shareholders common share rights to subscribe for 80,000,000 new
common shares and receive up to 80,000,000 warrants to acquire
additional common shares. Each common share held of record at 6:00
p.m. (Buenos Aires, Argentina time) on April 16, 2021; entitles its
holder to one common share right. Each common share right entitles
its holder to (i) subscribe for 0.1382465082 new common shares
pursuant to the exercise of preemptive rights, (ii) subscribe for
additional new common shares remaining unsubscribed after the
preemptive rights offering pursuant to the exercise of accretion
rights and (iii) receive free of charge, for each new common share
that it purchases pursuant to this offering, one warrant to
purchase one additional new common shares.
The
Bank of New York Mellon, as our GDS rights agent, will make
available to GDS holders GDS rights to subscribe for new GDS and
receive warrants to acquire additional common shares in the form of
GDS. Each GDS held of record at 5:00 p.m. (New York City time) on
April 16, 2021, entitles its holder to one GDS right. Each GDS
right entitles its holder to (i) subscribe for 0.1382465082 new
GDSs pursuant to the exercise of preemptive rights, (ii) subscribe
for additional GDSs remaining unsubscribed after the preemptive
rights offering pursuant to the exercise of accretion rights and
(iii) receive free of charge, for each new GDS that it purchases
pursuant to this offering, 10 warrants, each of which will entitle
such holder to purchase one additional new common
shares.
The
definitive subscription price for the new common shares will be
determined by our board of directors based on the average closing
price of the GDS on the NYSE for the five to thirty preceding
trading days, dividing such result by 10, and converting the
resulting amount into Argentine Pesos on the basis of the Blue Chip
Swap Rate. Our board of directors calculated the non-binding
indicative subscription price for our new GDSs based on the average
closing price of the GDS on the NYSE for the five to thirty
preceding trading days. The board may also apply a discount to such
average closing price, as approved by our shareholders’
meeting on October 30, 2019.
On
October 30, 2019, our shareholders’ meeting authorized our
board of directors to apply a discount of up to 10% of the current
trading price of our common shares and the GDSs when determining
the indicative and definitive subscription price of the new common
shares and the new GDSs. Our shareholders’ meeting also
authorized our board of directors to apply a discount of up to 15%
of the price determined pursuant to the guidelines approved by the
shareholders if required by market conditions at the time of
determining the price, in the discretion of our board of directors.
We expect to publish a notice including the definitive subscription
price in the bulletin of the ByMA, the website of the Argentine
Comisión Nacional de
Valores and released to PR Newswire.
Subscription Period
Holders
must exercise their rights from April 19, 2021, through 6:00 p.m.
(Buenos Aires, Argentina time) on May 6, 2021, in the case of the
common share rights (the “common shares subscription
period”) and from April 19, 2021, through 5:00 p.m. (New York
time) on May 3, 2021, in the case of the GDS rights (the “GDS
subscription period”).
22
To
exercise common share rights, you must deliver to our common shares
agent a properly completed subscription form accompanied by a
certificate of ownership issued by Caja de Valores or evidence of
assignment of the common share rights in your favor by 6:00 p.m.
(Buenos Aires, Argentina time) on May 6, 2021, or your common share
rights will lapse and have no further value. Deposit in the mail
will not constitute delivery to us.
To
exercise GDS rights, you must (i) instruct your broker or other
securities intermediary to exercise GDS rights on your behalf and
pay the amount specified below for each GDSs subscribed or sought
pursuant to accretion rights through the automated system of The
Depository Trust Company (“DTC”) (in the case of GDS
rights held through DTC) or (ii) deliver to the GDS rights agent a
properly completed GDS rights subscription form and pay the amount
specified below for each GDS subscribed or sought pursuant to
accretion rights by personal or business check (in the case of GDSs
held directly on the books of the Depositary). In either case, the
subscription and payment must be received by the GDS rights agent
by 5:00 p.m. (New York City time) on May 3, 2021. Your broker or
other securities intermediary will set an earlier cutoff date and
time to receive your instructions to subscribe
If you
do not exercise your GDS rights, the Depositary will try to sell
the underlying share rights in the Argentine market. If the
depositary is successful in selling those share rights, it expects
to receive Argentine pesos and will hold the net proceeds in
Argentine pesos for your account. However, under current Argentina
laws and regulations, the Depositary would not be able to convert
those pesos into U.S. dollars and thus would be unable to pay those
proceeds to you. If the Depositary receives payment in U.S. dollars
or is able to convert Argentine pesos into U.S. dollars, it will
convert the sales proceeds into dollars, if applicable, and pay you
your share, after deduction of applicable fees and
expenses.
The
amount you must deposit upon exercise will be the Deposit Amount
for each new GDSs subscribed for or sought.
Registered holders
of GDSs on the books of the Depositary must send their completed
and signed GDS rights subscription form and payment of the Deposit
Amount to the GDS rights agent as follows:
|
By
Mail:
The
Bank of New York MellonVoluntary Corporate Actions, Suite VPO Box
505049Louisville, KY 40233-5049
|
By
Overnight Delivery:
The
Bank of New York MellonVoluntary Corporate Actions, Suite V462
South 4th
Street, Suite 1600Louisville, KY 40202
|
Submissions of
subscriptions through the DTC system or submission of subscription
forms will represent an irrevocable exercise of preemptive and
accretion rights to purchase common shares or GDSs, as the case may
be, and may not be canceled or modified. Timely submission of these
documents is necessary for effective subscription of common shares,
and prospective subscribers should carefully review these
documents.
Forms
for completion and submission have been delivered with this
prospectus. Prospective subscribers requiring additional or
replacement copies of such forms, may obtain them upon request from
BACS Banco de Crédito y Securitización S.A. in its
capacity as our common share rights agent or The Bank of New York
Mellon in its capacity as our GDS rights agent.
Our
common share rights agent and GDS rights agent have discretion to
refuse any improperly completed or delivered or unexecuted
subscription form. The common shares subscription period and the
GDS subscription period, as the case may be, are the sole
opportunity to exercise preemptive and accretion rights with
respect to the common shares and GDSs, respectively.
23
Important Dates
The
summary timetable set forth below lists certain important dates
relating to the exercise of rights:
|
Timetable
for the Offering
|
|
|
Common
shares record date 6:00 p.m. (Buenos Aires, Argentina
time)
|
April
16, 2021
|
|
GDS
record date 5:00 p.m. (New York City time)
|
April
16, 2021
|
|
Common
share rights commence trading on the BYMA
|
April
15, 2021
|
|
Common
shares subscription period
|
April
19, 2021 to May 6, 2021
|
|
GDS
subscription period
|
April
19, 2021 to May 3, 2021
|
|
Publication of the
definitive subscription price for the new common shares and the new
GDSs
|
On or
about April 26, 2021
|
|
Expiration date for
holdersof GDS rights
|
May 3,
2021
|
|
End of
common share rights trading on the BYMA
|
May 5,
2021
|
|
Expiration date of
common shares subscription period
|
May 6,
2021
|
|
Allocation of
accretion rights
|
May 7,
2021
|
|
Delivery date for
new common shares pursuant to common share preemptive
rights
|
Within
five business days of the expiration date of the common shares
subscription period
|
|
Delivery date for
new common shares pursuant to common share accretion
rights
|
Within
five business days of the expiration date of the common shares
subscription period
|
|
Delivery date for
the new GDS pursuant to GDS preemptive rights
|
As
promptly as practicable after the delivery of the new common shares
pursuant to common share preemptive rights
|
24
|
Delivery date for the
new GDS pursuant to GDS accretion rightsAs promptly as practicable
after the delivery of the new common shares pursuant to common
share accretion rights
|
|
Fractional Entitlements
We will
not issue fractional common shares or GDSs, pursuant to this rights
offering or the exercise of the warrants, and entitlements to
common shares or GDSs will be rounded down to the nearest whole
common share or GDS, as the case may be.
Trading of Common Share and GDS Rights
Common
share rights will trade separately from such common shares on the
BYMA from the third business day preceding the subscription period.
A holder of record of common shares that sells rights on the BYMA
will transfer to the purchaser thereof the right to participate in
this rights offering and shall have no further right to participate
in the rights offering, regardless of whether such holder continues
to hold its common shares.
The GDS
rights will not be transferable and will not be listed on any
exchange.
The
Bank of New York Mellon, as Depositary, will try, to the extent
permitted by applicable law, to sell the common share rights
underlying the unexercised GDS rights on the BYMA. If the
depositary is successful in selling those share rights, it expects
to receive Argentine pesos and will hold the net proceeds in
Argentine pesos for your account. However, under current Argentina
laws and regulations, the Depositary would not be able to convert
those pesos into U.S. dollars and thus would be unable to pay those
proceeds to you. If the Depositary receives payment in U.S. dollars
or is able to convert Argentine pesos into U.S. dollars, it will
convert the sales proceeds into dollars and pay you your share,
after deduction of applicable fees and expenses.
Common Share Rights Agent
BACS
Banco de Crédito y Securitización S.A., located at
Tucumán 1, 19th Floor,
“A”, City of Buenos Aires, Argentina is acting as our
common share rights agent for the common share rights offering.
Holders of common shares who wish to subscribe for additional
common shares must subscribe through the common share rights agent.
The common share rights agent will not accept subscriptions from
holders of GDSs.
GDS Rights Agent
The
Bank of New York Mellon, located at 240 Greenwich Street, New York,
New York 10286, is acting as the GDS rights agent for the GDS
rights offering. Holders of GDSs who wish to subscribe for
additional GDSs must subscribe through the GDS rights agent. The
GDS rights agent will not accept subscriptions from holders of
common shares.
Subscription Price
On
April 12, 2021, we reported to the Argentine Comisión Nacional de Valores and
BYMA and released to PR Newswire a non-binding indicative
subscription price for each of the new common shares and GDSs of
USD 0.36 and USD 3.60, respectively.
The
definitive subscription price for the new common shares will be
determined by our board of directors based on the average closing
price of the GDS on the NYSE for the five to thirty preceding
trading days, dividing such result by 10, and converting the
resulting amount into Argentine Pesos on the basis of the Blue Chip
Swap Rate. Our board of directors will calculate the non-binding
indicative subscription price for our new GDSs based on the average
closing price of the GDS on the NYSE for the five to thirty
preceding trading days. The board may also
25
apply a
discount to such average closing price, as approved by our
shareholders’ meeting on October 30, 2019. We expect to
publish a notice including the definitive subscription price in the
bulletin of the Buenos Aires Stock Exchange, the website of the
Argentine Comisión Nacional
de Valores and released to PR Newswire.
The
subscription price for each new common share will be payable in
U.S. dollars outside Argentina or in Pesos in Argentina, determined
on the basis of the Blue Chip Swap Rate as of the second business
day prior to the expiration of the common shares subscription
period.
The
subscription price for each new GDS will be payable in U.S.
dollars. Holders of new GDSs must deposit US$ 3.78 per New GDS
subscribed for or sought (the “Deposit Amount”), which
is equal to 105% of the indicative subscription price. This extra
five percent allowance will be used to cover the Depositary's
issuance fee of $0.05 per new GDS and any other applicable fees or
expenses, and then will be applied to the final subscription price,
if it is higher than the indicative subscription price.If the
Deposit Amount exceeds the sum of the final subscription price plus
the Depositary’s issuance fee and any other applicable fees
and expenses, the Depositary will refund the surplus to the
exercising GDS holders as soon as practicable after closing of the
rights offering. If the Deposit Amount is less than the sum of the
final subscription price plus the Depositary’s issuance fee
and any other applicable fees and expenses, the GDS rights agent
will notify the GDS holder of the amount of the shortfall, and the
GDS holder must fund that shortfall as no event later than the day
on which the GDS rights agent is required to make payment to the
Company. If the
shortfall is not funded, the GDS rights agent may withhold and sell
a portion of the new GDSs to cover that shortfall or reduce the
number of new GDSs subscribed.
Accretion Rights
Under
Argentine law, if any shares are not subscribed for by shareholders
in the exercise of their preemptive rights, the remaining
shareholders who have exercised their preemptive rights shall have
accretion rights pursuant to which they may purchase unsubscribed
shares in proportion to the shares purchased by such exercising
shareholder pursuant to their preemptive rights.
Holders
of common share rights will be asked to indicate in the
subscription form which they submit with respect to the exercise of
their preemptive rights, the number of common shares they are
willing to acquire pursuant to their accretion rights in the event
there are common shares which remain unsubscribed after the
exercise of preemptive rights.
GDS
holders that subscribe for new GDSs pursuant to preemptive rights
may indicate on their subscription forms a number of additional
GDSs for which they would be willing to subscribe pursuant to
accretion rights. GDS holders must submit the Deposit Amount with
their subscription forms for the full number of additional GDSs
requested pursuant to accretion rights. If accretion rights are
allocated to the Depositary, the GDS rights agent will allocate
additional GDSs to GDS holders that requested them. If the
additional GDSs available pursuant to accretion rights are
insufficient to fill in all requests, the GDS rights agent will
allocate the available additional GDSs among requesting GDS holders
pro rata based on the ratio between the number of GDSs available
and the aggregate permissible amount sought by subscribing
holders.
On May
7, 2021, which is one business day after the end of the common
shares subscription period, we will notify holders of our common
shares and GDS holders that have indicated that they wish to
exercise their accretion rights of the aggregate number of
unsubscribed common shares and GDSs, as applicable, by publication
of a notice in the bulletin of the Buenos Aires Stock Exchange and
PR Newswire. Based on this notice, we will allocate unsubscribed
common shares to holders of common shares and GDSs to GDS holders,
as applicable, in accordance with their accretion
rights.
If we
allocate to any GDS rights holder fewer GDSs than the number of GDS
such holder sought to acquire pursuant to their accretion rights,
the GDS rights agent will notify such holder and promptly reimburse
them after completion of this offering for any excess amount which
such holder may have paid to the GDS rights agent in connection
with their exercise of their accretion rights.
26
Results of the Rights Offering
On May
10, 2021, which is the second Argentine business day after the end
of the common shares subscription period, we will notify holders of
our common shares and GDS holders by publication of a notice in the
bulletin of the Buenos Aires Stock Exchange and by issuing a press
release to PR Newswire of the final results of the offering for
common share rights and GDS rights.
Payment and Method of Purchase
Payment
in full of the subscription price for common shares purchased
pursuant to the exercise of preemptive rights and accretion rights
relating to common shares must be received by our common share
rights agent in Pesos by 6:00 p.m. (Buenos Aires time) on May 6,
2021.
Payment
in full of the subscription price for each GDS purchased pursuant
to the exercise of preemptive rights and accretion rights relating
to GDSs must be received by our GDS rights agent in U.S. dollars by
5:00 p.m. (New York time) on May 3, 2021.
Exercising
shareholders who do not pay for their common shares by such time on
the payment date will forfeit their rights to such common shares.
Such payment should be made in cash to (i) Caja de Valores S.A. by
means of direct debit, or (ii) our common share rights agent by
wire transfer to Central Bank Account No. 340. Any payment to our
common share rights agent must be made either in Pesos or U.S.
dollars.
Failure
to pay for the common shares will result in non-compliance with the
respective payment terms established above. In case of non-payment,
our board of directors may take any action with respect to the
common shares that is allowed under Argentine corporate law. If our
board of directors chooses to declare the rights of any non-paying
party void, it must decide upon the treatment to be given to the
unpaid common shares which may be offered to third parties at the
same subscription price.
THE
METHOD OF DELIVERY OF SUBSCRIPTION FORM AND PAYMENT OF THE
SUBSCRIPTION PRICE TO THE COMMON SHARE RIGHTS AGENT OR THE GDS
RIGHTS AGENT WILL BE AT THE ELECTION AND RISK OF THE HOLDERS OF
COMMON SHARE RIGHTS AND GDS RIGHTS. IF SENT BY MAIL, HOLDERS OF
SUCH RIGHTS ARE URGED TO SEND SUBSCRIPTION FORMS AND PAYMENTS BY
REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED,
AND ARE URGED TO ALLOW A SUFFICIENT NUMBER OF DAYS TO ENSURE
DELIVERY TO THE COMMON SHARE RIGHTS AGENT OR THE GDS RIGHTS AGENT,
AS THE CASE MAY BE, AND CLEARANCE OF PAYMENT PRIOR TO THE RELEVANT
EXPIRATION DATE. HOLDERS OF COMMON SHARE RIGHTS AND GDS RIGHTS ARE
STRONGLY URGED TO PAY, OR ARRANGE FOR PAYMENT, BY MEANS OF
CERTIFIED OR CASHIER’S CHECK OR MONEY ORDER.
Use of Unsubscribed Common Shares
After
expiration of the common shares subscription period, our board of
directors may cancel the unsubscribed common shares or sell them to
third parties at such times as our board of directors may
determine. The price for such sales may not be more favorable to
the purchaser than the price offered herein. We currently intend to
offer any unsubscribed common shares to the public promptly after
completion of this offering.
Determinations of Timeliness, Validity, Form and
Eligibility
We may
reject non-binding indications of interest, based on the following
criteria: (i) non-compliance with anti-money laundering
regulations, (ii) delivery of an incomplete or otherwise defective
subscription form or GDS rights subscription form, as applicable,
(iii) untimely delivery of a subscription form or GDS rights
subscription form, as applicable, or (iv) non-compliance with any
other requirement for the subscription of common shares or GDSs set
forth in this prospectus.
27
DILUTION
As of
December 31, 2020, our outstanding capital stock consisted of
578,676,460 common shares. If you invest in our common shares and
GDSs in this offering, your ownership interest will be diluted to
the extent of the difference between the offering price per common
share and the pro forma net book value per common share and per GDS
upon the completion of this rights offering. Dilution results from
the fact that the per-common share offering price of common shares
and the per-GDS offering price of GDS in this offering could be
substantially in excess of the book value per common share and per
GDS attributable to the common shares and GDSs.
Dilution of shareholders participating in this
offering
Dilution due to issuance of new common shares
As of
December 31, 2020, we had a net tangible book value of ARS 67,898
million or ARS 117.3 per common share or USD 13.9 per GDS. Net
tangible book value per share or common share represents the amount
of our total tangible assets of ARS 197,920 million (total assets
less intangible assets, right-of-use assets and net deferred tax
assets) less total liabilities of ARS 107,848 million and minority
interest of ARS 22,174 million, divided by 578,676,460, the total
number of our common shares outstanding as of December 31, 2020.
After giving effect to the sale of the 80,000,000 common shares
offered by us in this offering and, after deducting the estimated
offering expenses payable by us, our net tangible book value
estimated at December 31, 2020 would have been approximately
ARS 72,208 million, representing ARS 109.6 per common
share and USD 12.7 per GDS. Assuming a subscription offering
price of ARS 54.4 per common share, this represents an
immediate decrease in net tangible book value of ARS 7.7 per
common share and USD 1.3 per GDS to existing shareholders and
GDS holders, respectively, and an immediate dilution in tangible
book value of ARS 55.2 per common share and USD 9.1 per
GDS to purchasers of common shares and GDSs in this offering.
Dilution for this purpose represents the difference between the
price per common share paid by these purchasers and net tangible
book value per common share immediately after the completion of
this offering.
The
following table illustrates this dilution to purchasers of common
shares and common shares in the form of GDSs in this rights
offering:
|
|
Per
CommonShare
|
Per
GDS
|
|
Hypothetical
subscription price(1)
|
54.4
|
3.6
|
|
Net tangible book
value as of December 31, 2020
|
117.3
|
13.9
|
|
Decrease in net
tangible book value attributable to shareholders who exercise their
common share rights
|
7.7
|
1.3
|
|
Pro forma net
tangible book value per common share after this
offering
|
109.6
|
12.7
|
|
Dilution of
shareholders who exercise their common share rights
|
55.2
|
9.1
|
|
% of dilution to
shareholders who exercise their common share rights
|
101.5
|
252.2
|
(1) Converted to U.S.
dollars on the basis of the Blue Chip Swap Rate for April 9, 2021,
which was ARS 151.14 per USD1.00 solely for this dilution
analysis.
Dilution due to new warrants offered in this offering
The
dilution resulting from the exercise of the new warrants issued
pursuant to this rights offering will occur if such price of such
exercise is lower than the pro forma net book value of the
underlying share at the date of exercise. The percentage of such
dilution will significantly depend on the difference between the
exercise price and the pro forma net book value of the underlying
shares.
28
The
following table shows the dilution resulting from the exercise
price of the new warrants and corresponding issuance of common
shares (before deducting expenses, fees and commissions payable by
us in connection with this rights offering):
|
|
Per
CommonShare
|
Per
GDS
|
|
Hypothetical
subscription price(1)
|
54.4
|
3.6
|
|
Exercise price of
the warrants
|
65.3
|
4.3
|
|
Pro forma value
after this offering andbefore the exercise of the
warrants
|
109.6
|
12.7
|
|
Decrease in pro
forma net tangible book value attributableto the issuance of
warrants
|
4.8
|
0.9
|
|
Pro forma net
tangible book value after this offering andafter the exercise of
the warrants
|
104.8
|
11.8
|
|
Dilution (increase)
in pro forma net tangible book value of the warrants
|
39.5
|
7.5
|
|
Percentage of
dilution (increase) of the issuance of the warrants
|
60.5
|
172.6
|
(1)
Converted to U.S.
dollars on the basis of the Blue Chip Swap Rate for April 9, 2021,
which was ARS 151.14 per USD1.00 solely for this dilution
analysis.
Dilution of shareholders not participating in this
offering
Dilution due to subscriptions for common shares and GDSs in this
offering, and new warrants offered in this offering
Existing holders of
our common shares and GDS holders who do not exercise their common
share rights and the GDS rights, respectively, in the rights
offering will have their ownership interests reduced such that a
holder of our common shares who held ten percent of our capital
stock before this rights offering will be reduced to holding 8.79%
after the issuance of new common shares pursuant to this rights
offering and 7.83% after the exercise of the warrants granted as a
result of the exercise of the common share rights and the GDS
rights.
29
DESCRIPTION OF CAPITAL
STOCK
Set forth below is certain information relating to our capital
stock, including brief summaries of certain provisions of our
bylaws, the Argentine Companies Law and certain related laws and
regulations of Argentina, all as in effect as of the date hereof.
The following summary description of our capital stock does not
purport to be complete and is qualified in its entirety by
reference to our bylaws, the Argentine Companies Law and the
provisions of other applicable Argentine laws and regulations,
including the CNV Rules and the rules of the BYMA.
General
Our
common shares are listed on BYMA under the trading symbol
“IRSA” and our GDS are listed on the NYSE under the
trading symbol “IRS.” As of December 31, 2020, we had
authorized capital stock of 578,676,460 common shares, ARS1.00 par
value per share, and outstanding capital stock of 578,676,460
common shares. As of the date of this prospectus, we have no other
shares of any class or series issued and outstanding. Our common
shares have one vote per share. All outstanding shares of the
common shares are validly issued, fully paid and
non-assessable.
As of
December 31, 2020, there were approximately 4,536 holders of our
common shares. Our shareholders have authorized a capital increase
of up to 200,000,000 common shares, including common shares in the
form of GDSs, in this offering and in the offering of common shares
in Argentina. The aggregate number of common shares to be sold in
this offering and in our substantially concurrent international
offering of GDS is expected to be approximately 80,000,000,
assuming no exercise of preemptive and accretion rights by our
minority shareholders.
Shareholders’
rights in an Argentine stock corporation are governed by its bylaws
and by the Argentine Companies Law. All provisions of the Argentine
Companies Law take precedence over any contrary provision in a
corporation’s bylaws.
The
Argentine securities markets are principally regulated by the CNV
Rules, the Capital Markets Law, the Negotiable Obligations Law
Nº 23,576 and the Argentine Companies Law. These laws govern
disclosure requirements, restrictions on insider trading, price
manipulation and protection of minority investors.
Corporate purpose
Our
legal and commercial name is IRSA Inversiones y Representaciones
Sociedad Anónima. We were incorporated and organized on April
30, 1943, under Argentine law as a stock corporation (sociedad anónima), and we were
registered with the Public Registry of Commerce of the City of
Buenos Aires (Inspección
General de Justicia or “IGJ”) on June 23, 1943,
under number 284, on page 291, book 46 of volume A. Pursuant to our
bylaws, our term of duration expires on April 5, 2043. Pursuant to
article 4 of our by-laws our purpose is to perform the following
activities:
●
Invest, develop and
operate real estate developments;
●
Invest, develop and
operate personal property, including securities;
●
Construct and
operate works, services and public property;
●
Agency
activities;
●
Manage real or
personal property, whether owned by us or by third
parties;
●
Build, recycle, or
repair real property whether owned by us or by third
parties;
●
Advise third
parties with respect to the aforementioned activities;
30
●
Finance projects,
undertakings, works and/or real estate transactions of third
parties;
●
Finance, create,
develop and operate projects related to Internet.
Limited liability
Shareholders’
liability for losses is limited to their shareholdings in the
Company. Notwithstanding the foregoing, a shareholder who votes on
a business transaction in which the shareholder’s interest
conflicts with that of the Company may be liable for damages under
the Argentine Companies Law, but only if the transaction would not
have been validly approved without such shareholder’s vote.
In addition, under Argentine Companies Law, shareholders who voted
in favor of a resolution that is subsequently declared void by a
court as contrary to Argentine law or a company’s bylaws (or
regulation, if any) may be held jointly and severally liable for
damages to such company, other shareholders or third parties
resulting from such resolution.
Capitalization
We may
increase our share capital upon authorization by our shareholders
at an ordinary shareholders’ meeting in terms of Section 188
of the Argentine Companies Law. Capital increases must be
registered with the public registry of (Registro Público de Comercio), and
published in the Official Gazette. Capital reductions may be
voluntary or mandatory and must be approved by the shareholders at
a special shareholders’ meeting (asamblea extraordinaria) taking into
account a report from the audit committee on voluntary reductions.
Reductions in capital are mandatory when losses have depleted
reserves and exceed 50% of capital. As of the date of this
prospectus, our share capital consisted of
common shares.
Our
bylaws provide that preferred stock may be issued when authorized
by the shareholders at a special shareholders’ meeting
(asamblea extraordinaria)
and in accordance with applicable regulations. Such preferred stock
may have a fixed cumulative dividend, with or without additional
participation in our profits that may be issued without voting
rights, except for certain issues, as resolved in a
shareholders’ meeting. We currently have no outstanding
preferred stock.
Preemptive rights and increases of share capital
Pursuant to our
bylaws and Argentine Companies Law, in the event of an increase in
our share capital, each of our existing holders of our common
shares has a preemptive right to subscribe for new common shares in
proportion to such holder’s share ownership. For any shares
of a class not preempted by any holder of that class, the remaining
holders of the class will be entitled to accretion rights based on
the number of shares they purchased when they exercised their own
preemptive rights. Notices of such increase must be published for
three days in the Official Gazette and in a widely circulated
newspaper in Argentina. Accretion rights must be exercised within
the 30 days that follow that publication of the last notice.
Pursuant to the Argentine Companies Law, such 30-day period may be
reduced to 10 days by a decision of our shareholders adopted at an
extraordinary shareholders’ meeting (asamblea extraordinaria). At a meeting
held on October 29, 2018, our shareholders approved a resolution to
reduce such period to 10 days.
Additionally, the
Argentine Companies Law permits shareholders at a special
shareholders’ meeting (asamblea extraordinaria) to suspend or
limit their preemptive rights relating to the issuance of new
shares in specific and exceptional cases in which the interest of
our Company requires such action and, additionally, under the
following specific conditions:
●
the issuance is
expressly included in the list of matters to be addressed at the
shareholders’ meeting; and
●
the shares to be
issued are to be paid in-kind or in exchange for payment under
pre-existing obligations.
31
Preemptive rights
may be eliminated, and/or the subscription period may be reduced to
not less than 10 days, if we enter into an agreement with
underwriters to assign such preemptive rights. Preemptive rights
may also be eliminated so long as a resolution providing so has
been approved at a special shareholder’s meeting
(asamblea extraordinaria)
by at least 50% of the outstanding capital stock entitled to
vote.
Shareholders’ meetings and voting rights
General
Shareholders’
meetings may be ordinary or extraordinary. We are required to
convene an ordinary shareholders’ meeting within four months
of the close of each fiscal year to approve our financial
statements, allocate net income for the fiscal year, approve the
reports of the Board of Directors and the audit committee, and
elect and set remuneration of directors and members of the audit
committee. Other matters which may be considered at an ordinary
meeting include the responsibility of directors and members of the
audit committee, capital increases and the issuance of certain
corporate bonds. Extraordinary shareholders’ meetings may be
called at any time to consider matters beyond the scope of an
ordinary meeting, including amendment of the bylaws, issuance of
debentures, early dissolution, merger, spin-off, reduction of
capital stock and redemption of shares, changing the limiting or
extending the shareholders liability by changing our corporate
legal status and limitation of shareholders preemptive
rights.
Notices
Notice
of shareholders’ meetings must be published for five days in
the Official Gazette of the Republic of Argentina, in an Argentine
newspaper of wide circulation and in the publications of Argentine
exchanges or securities markets in which our common shares are
traded, at least ten days prior to the date on which the meeting is
to be held as per Argentine Companies Law, and at least 20 days
prior to the meeting as per Capital Markets Law. The notice must
include information regarding the type of meeting to be held, the
date, time and place of the meeting and the agenda. If there is no
quorum at the meeting, notice for a meeting on second call must be
published for three days, at least eight days before the date of
the second meeting, and must be held within 30 days of the date for
which the first meeting was called. The first call and second call
notices may be sent simultaneously in order for the meeting on
second call to be held on the same day as the meeting on first
call, but only in the case of ordinary shareholders’
meetings. Shareholders’ meetings may be validly held with at
least 10 days’ prior notice in the publications of Argentine
exchanges or securities markets in which our common shares are
traded if all common shares of our outstanding capital stock are
present and resolutions are adopted by unanimous vote.
The
Board of Directors will determine appropriate publications for
notice outside Argentina in accordance with requirements of
jurisdictions and exchanges where our common shares are
traded.
Quorum and voting requirements
The
quorum for ordinary meetings of shareholders on first call is a
majority of the common shares entitled to vote, and action may be
taken by the affirmative vote of an absolute majority of the common
shares present that are entitled to vote on such action. If a
quorum is not available, a second call meeting may be held at which
action may be taken by the holders of an absolute majority of the
common shares present, regardless of the number of such common
shares. The quorum for an extraordinary shareholders’ meeting
on first call is 60% of the common shares entitled to vote, and if
such quorum is not available, a second call meeting may be held,
for which there are no quorum requirements.
Action
may be taken at extraordinary shareholders’ meetings by the
affirmative vote of an absolute majority of common shares present
that are entitled to vote on such action, except that the approval
of a majority of common shares with voting rights, without
application of multiple votes, is required in both first and second
call for: (i) the transfer of our domicile outside Argentina, (ii)
a fundamental change of the corporate purpose set forth in
the
32
bylaws, (iii)
our anticipated dissolution, (iv) the total or partial repayment of
capital, (v) a merger of our company, if we are not the surviving
entity, (vi) a spin-off of our company or (vii) changing our
corporate legal status.
Shareholders’
meetings may be called by the Board of Directors or the members of
the statutory audit committee whenever required by law or whenever
they deem it necessary. Also, the board or the members of the
statutory audit committee are required to call shareholders’
meetings upon the request of shareholders representing an aggregate
of at least five percent of our outstanding capital stock. If the
board or the statutory audit committee fails to call a meeting
following this request, a meeting may be ordered by the CNV or by
the courts. In order to attend a meeting, a shareholder must
deposit with us a certificate of book-entry shares registered in
his name and issued by Caja de Valores at least three business days
prior to the date on which the meeting is to be held. A shareholder
may be represented by proxy. Proxies may not be granted to any of
our directors, members of our audit committee or officers or
employees.
Dividends and liquidation rights
The
Argentine Companies Law establishes that the distribution and
payment of dividends to shareholders is valid only if they result
from realized and net earnings of the company pursuant to an annual
balance sheet approved by the shareholders. Our board of directors
submits our financial statements for the previous financial year,
together with the reports of our Supervisory Committee, to the
Annual Ordinary Shareholders’ Meeting. This meeting must be
convened by October 31 of each year to approve the financial
statements and decide on the allocation of our net income for the
year under review. The distribution, amount and payment of
dividends, if any, must be approved by the affirmative vote of the
majority of the present votes with right to vote at the
meeting.
The
shareholders’ meeting may authorize payment of dividends on a
quarterly basis provided no applicable regulations are violated. In
that case, all and each of the members of the board of directors
and the Supervisory Committee will be jointly and severally liable
for the refund of those dividends if, as of the end of the
respective fiscal year, the realized and net earnings of the
Company are not sufficient to allow the payment of
dividends.
When we
declare and pay dividends on the common shares, the holders of our
GDS, each representing the right to receive ten ordinary shares,
outstanding on the corresponding registration date, are entitled to
receive the dividends due on the common shares underlying the GDS,
subject to the terms of the deposit agreement, dated as of May 24,
1994, as amended and restated as of December 12, 1994, as further
amended and restated as of November 15, 2000, among us, The Bank of
New York Mellon (as successor to The Bank of New York), as
depositary, and the eventual holders of GDS. The cash dividends are
to be paid in Pesos and, subject to applicable Argentine laws,
regulations and approvals, to the extent that the Depositary can in
its judgment convert Pesos (or any other foreign currency) into
U.S. dollars on a reasonable basis and transfer the resulting U.S.
dollars to the United States, are to be paid to the holders of the
GDS net of any applicable fee on the dividend distribution, costs
and conversion expenses, taxes and public charges. The exchange
rate for the dividends will occur at a floating market
rate.
Our
dividend policy is proposed from time to time by our board of
directors and is subject to shareholders’ approval at an
ordinary shareholders’ meeting. Declarations of dividends are
based upon our results of operations, financial condition, cash
requirements and future prospects, as well as restrictions under
debt obligations and other factors deemed relevant by our board of
directors and our shareholders.
Dividends may be
lawfully paid only out of our retained earnings determined by
reference to the financial statements prepared in accordance with
IFRS. In accordance with the Argentine Companies Law, net income is
allocated in the following order: (i) allocate 5% of such net
profits to legal reserve, until the amount of such reserve equals
20% of our capital stock; (ii) the sum established by the
shareholders’ meeting as remuneration of the Board of
Directors and the Supervisory Committee; and (iii) dividends,
additional dividends to preferred shares if any, or to optional
reserve funds or contingency reserves or to a new account, or for
whatever purpose the shareholders determine at the
shareholders’ meeting.
Our
legal reserve is not available for distribution. Under the
applicable regulations of the CNV, dividends are distributed pro
rata in accordance with the number of shares held by each holder
within 30 days of being declared by the shareholders for cash
dividends and within 90 days of approval in the case of dividends
distributed
33
as
shares. The right to receive payment of dividends expires three
years after the date on which they were made available to
shareholders.
In the
event of liquidation, dissolution or winding-up of our company, our
assets are:
●
to be applied to
satisfy its liabilities; and
●
to be
proportionally distributed among holders of preferred shares in
accordance with the terms of the preferred shares. If any surplus
remains, our shareholders are entitled to receive and share
proportionally in all net assets available for distribution to our
shareholders, subject to the order of preference established by our
bylaws.
Approval of financial statements
Our
fiscal year ends on June 30 of each year, after which we prepare an
annual report which is presented to our board of directors and
Supervisory Committee. The board of directors submits our financial
statements for the previous financial year, together with the
reports of our Supervisory Committee, to the annual ordinary
shareholders’ meeting, which must be convened within 120 days
of the close of our fiscal year, in order to approve our financial
statements and determine our allocation of net income for such
year. At least 20 days before the ordinary shareholders’
meeting, an annual report must be available for inspection at our
principal office.
Dissenting shareholders may exercise appraisal rights
Whenever certain
actions are approved at a special shareholders’ meeting
(asamblea extraordinaria),
including:
●
a merger or a
spin-off in which we would not be the surviving entity (except when
the shares of the acquired company are publicly
traded);
●
a transformation
from one type of corporation to another;
●
a fundamental
change in our bylaws;
●
a transfer of the
domicile of our company outside of Argentina;
●
a voluntary
withdrawal of a public offer or delisting of our
shares;
●
a decision to
continue operations after our shares cease to be publicly traded;
or
●
total or partial
recapitalization following a mandatory reduction of capital or
liquidation;
any
shareholder dissenting from the adoption of any such resolution or
who was not present or represented by proxy at the
shareholders’ meeting at which any such resolution was
adopted may withdraw and tender their common shares to us and
receive the book value per share determined on the basis of our
latest financial statements, whether completed or to be
completed.
The
shareholder must exercise their appraisal rights within five days
following the shareholders’ meeting at which the resolution
was adopted, in the case of dissenting shareholders, or within
fifteen days following the shareholders’ meeting, in the case
of absent shareholders who can prove they were a shareholder of
record on the day of the shareholders’ meeting.
In the
case of a merger or spin-off involving an entity that has qualified
for a public offering of its shares, appraisal rights may not be
exercised if the shares to be received in connection with such
merger or spin-off are publicly traded. Appraisal rights are
extinguished with respect to a given resolution if such resolution
is
34
subsequently
overturned at another shareholders’ meeting held within 60
days of the previous meeting at which the original 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 where the resolution involved a decision that our
common shares cease to be publicly traded, in which case the
payment period is reduced to 60 days from the date on which an
absent shareholder could have exercised their appraisal rights or
60 days from the date of publication of the decision that our
common shares cease to be publicly traded.
Ownership restrictions
The CNV
Rules require that transactions that would result in a person
holding 5% or more of the capital stock of a registered Argentine
company should be immediately notified to the CNV. Thereafter,
every change in the holdings that represents a multiple of 5% of
the voting power should also be notified to the CNV.
Directors, senior
managers, executive officers, members of the Supervisory Committee,
and controlling shareholders of an Argentine company whose
securities are publicly listed, must notify the CNV on a monthly
basis of their beneficial ownership of shares, debt securities, and
call and put options related to securities of such companies and
their controlling, controlled or affiliated companies.
Holders
of more than 50% of the common shares of a listed company or who
otherwise have voting control of a company, as well as directors,
officers and members of the Supervisory Committee, must provide the
CNV with a prospectus setting forth their holdings in the capital
stock of such companies and file reports of any change in their
holdings.
Tender offers
Tender
offers under Argentine law may be voluntary or mandatory. In either
case, the offer must be addressed to all shareholders. In the case
of a mandatory tender offer, the offer must also be made to the
holders of subscription rights, stock options or convertible debt
securities that directly or indirectly may grant a subscription,
acquisition or conversion right on voting shares in proportion to
their holdings at the time the offer is made.
According to our
bylaws, when a person or an entity intends to acquire 35% or more
of the shares of a company (participación significativa)
(“significant holding”) a mandatory tender offer to
purchase at least 50% of the corporate voting capital is required.
According to the CNV Rules, if the person or entity intends to
acquire 50% or more of the shares of a company, then a mandatory
tender offer to purchase all capital stock outstanding is
required.
Finally, when a
shareholder controls 95% or more of the outstanding shares of a
company, (i) any minority shareholder may, at any time, demand that
the controlling party make an offer to purchase all of the
remaining shares of the minority shareholders and (ii) the
controlling party can issue a unilateral statement of intention to
acquire all of the remaining shares owned by the other
shareholders.
Redemption of common shares
Pursuant to the
Argentine Companies Law we may redeem our outstanding common shares
only under the following circumstances:
●
to cancel such
shares and only after a decision to reduce our capital stock at a
duly convened shareholders’ meeting (asamblea extraordinaria) called for
such purpose;
●
to avoid
significant damage to our company under exceptional circumstances,
and then only using retained earnings or free reserves that have
been fully paid, which action must be ratified at the next
succeeding annual shareholders’ meeting; or
35
●
in the case of the
acquisition by a third party of our common shares.
The
Argentine Capital Markets Law provides for other circumstances
under which our company, as a publicly listed company, can
repurchase our common shares. The following are necessary
conditions for the acquisition of our common shares:
●
the shares to be
acquired shall be fully paid;
●
there shall be a
board of directors’ resolution containing a report of our
Supervisory Committee or Audit Committee regarding such proposed
share repurchase. Our board of director’s resolution must set
forth the purpose of the acquisition, the maximum amount to be
invested, the maximum number of shares or the maximum percentage of
capital that may be acquired and the maximum price to be paid per
share. Our board of directors must give complete and detailed
information to both shareholders and investors;
●
the purchase shall
be funded from our net profits or with free or optional reserves,
and we must provide to the CNV that we have the necessary liquidity
and that the proposed share repurchase will not affect our
solvency; and
●
under no
circumstances may the shares we acquire, including those that may
have been previously acquired that we held as treasury stock,
exceed 10% of our capital stock or such lower percentage
established by the CNV after taking account of the trading volume
of our shares.
Any
shares acquired by us that exceed 10% of our capital stock must be
disposed of within 90 business days from the date of repurchase of
share that resulted in such excess.
Transactions
relating to the acquisition of our own shares may be carried out
through open market transactions or through a tender offer. In the
case of acquisitions in the open market, the amount of shares
purchased daily cannot exceed 25% of the mean daily traded volume
of our shares during the previous 90 business days. In case of an
open market transactions or through a tender offer, the CNV can
require that the acquisition be carried out through a tender offer
if the shares to be purchased represent a significant percentage in
relation to the mean traded volume.
There
are no legal limitations to ownership of our securities or to the
exercise of voting rights pursuant to the ownership of our
securities, by non-resident or foreign shareholders.
Registrations and transfers
Our
common shares are held in registered, book-entry form. The registry
for our shares is maintained by Caja de Valores S.A. at its
executive offices located at 25 de Mayo 362, (C1002ABH) Buenos
Aires, Argentina. Only those persons whose names appear on such
share registry are recognized as owners of our common shares.
Transfers, encumbrances and liens on our shares must be registered
in our share registry and are only enforceable against us and third
parties from the moment registration takes place.
36
DESCRIPTION OF
GLOBAL DEPOSITARY RECEIPTS
The following is a summary of certain provisions of the deposit
agreement, dated as of May 24, 1994, as amended and restated as of
December 12, 1994, as further amended and restated as of November
15, 2000, among us, The Bank of New York Mellon (formerly known as
The Bank of New York), as Depositary, and the owners and holders of
GDRs issued under the deposit agreement. Such summary does not
purport to be complete and is qualified in its entirety by
reference to the form of deposit agreement, incorporated as an
exhibit to our Form 20-F, Registration Number 001-13542 as filed
with the SEC. Copies of the deposit agreement are also available
for inspection at the principal office of the Depositary, currently
located at 240 Greenwich Street, New York, NY 10286. Terms used in
this prospectus and not otherwise defined shall have the respective
meanings set forth in the deposit agreement.
Global depositary shares
GDRs
evidencing GDSs are issuable pursuant to the deposit agreement. One
GDS represents the right to receive 10 common shares. The shares
represented by GDSs will be deposited with the Caja de Valores for the account of
Banco Santander Río S.A., as custodian for the Depositary in
Argentina. A GDR may evidence any number of GDSs and represents all
other securities, property and cash received in respect of shares
in accordance with the deposit agreement. Only persons in whose
names GDRs are registered on the books of the Depositary will be
treated by us as owners and holders of GDRs.
Deposit and withdrawal of shares and issuance of GDRs
Subject
to the terms and conditions of the deposit agreement, the
Depositary has agreed that upon deposit with the custodian of our
common shares by delivery of certificates of such shares to the
custodian, by electronic transfer of such shares to the account
maintained by the custodian, or delivery to the custodian of
evidence, reasonably satisfactory to the custodian that irrevocable
instructions have been given to cause such shares to be transferred
to such account, together with appropriate issuance instructions
and instruments of transfer or endorsement, satisfaction of all
laws and regulations, payments of the fees and expenses of the
Depositary and the certifications referred to below, and subject to
the terms of the deposit agreement, the Depositary will execute and
deliver at the Depositary’s principal corporate trust office,
to the person or persons certified entitled thereto, a GDR or GDRs
evidencing the number of GDSs issuable in respect of such
deposit.
Upon
surrender of GDRs at the principal corporate trust office of the
Depositary, and upon payment of the fees, taxes and governmental
charges specified in the deposit agreement, subject to the terms
and conditions of the deposit agreement, our corporate charter and
deposited securities (as defined below) and Argentine laws and
regulations, owners are entitled to electronic delivery through the
Caja de Valores or, if
available, to physical delivery at the office of the custodian in
Buenos Aires or the principal corporate trust office of the
Depositary of the deposited securities and any other securities and
property represented by the GDSs so surrendered. Such delivery will
be made to the GDR holder or upon the GDR holder’s order
without unreasonable delay. The forwarding of shares and other
documents of title for such delivery to a GDR holder, or as ordered
by such GDR holder, will be at its risk and expense or the risk and
expense of the person submitting such written instruction for
delivery.
The
Depositary may own and deal in any class of securities of us or of
our affiliates and in GDRs.
Dividends, other distributions and rights
Subject
to applicable Argentine laws, regulations and approvals, to the
extent that the Depositary can in its judgment convert Pesos (or
any other foreign currency) into U.S. dollars on a reasonable basis
and transfer the resulting U.S. dollars to the United States, the
Depositary will promptly as practicable convert or cause to be
converted all cash dividends and other cash distributions received
by it on the deposited securities into U.S. dollars and distribute
the resulting U.S. dollars after deduction of the fees of the
Depositary and any amount charged by the Depositary in connection
with the conversion of Pesos (or other foreign currency) into U.S.
dollars, to the owners in proportion to the number of GDS
representing such deposited securities held by each of them. The
amounts distributed will be reduced by any amounts required to be
withheld by us, the Depositary or the custodian on
37
account
of taxes or other governmental charges. If the Depositary
determines that in its judgment any foreign currency received by it
cannot be so converted on a reasonable basis (including, as a
result of applicable Argentine laws, regulations and approval
requirements), the Depositary may distribute the foreign currency
received by it or in its discretion hold such currency uninvested
for the respective accounts of the owners entitled to receive the
same (without liability for interest).
If the
custodian or the Depositary receives any distribution upon any
deposited securities in securities or property (other than cash or
shares or rights upon any deposited securities), the Depositary
will distribute such securities or property to the owners entitled
thereto, after deduction or upon payment of the fees and expense of
the Depositary, in proportion to their holdings, in any manner that
the Depositary deems equitable and practicable. If in the opinion
of the Depositary, however, the distribution of such property
cannot be made proportionately among such owners, or if for any
other reason (including any requirement that we or the Depositary
withhold an amount on account of taxes or other governmental
charges or that such securities must be registered under the
Securities Act in order to be distributed to such owners) the
Depositary deems such distribution not feasible, the Depositary
may, upon consultation with us, adopt such method as it may deem
equitable or practicable in order to effect such distribution,
including the sale (public or private) of all or any part of such
property and securities and the distribution to owners of the net
proceeds of any such sale, as in the case of a distribution
received in cash.
If we
declare a dividend in, or free distribution of, additional shares,
the Depositary may, and shall if we so request, instruct us to
deposit or cause such shares to be deposited with the account of
the custodian at Caja de
Valores and distribute to the owners in proportion to their
holdings, additional GDRs for an aggregate number of GDS
representing the number of shares received as such dividend or free
distribution, subject to the terms and conditions of the deposit
agreement and after deduction or payment of any amounts required to
be withheld on account of taxes or other governmental charges and
the fees and expenses of the Depositary. If additional GDRs are not
so distributed, each GDS shall thereafter also represent the
additional shares distributed with respect to the shares
represented thereby. In lieu of issuing GDRs for fractions of GDSs,
in any such case, the Depositary shall sell the number of shares
represented by the aggregate of such fractions and distribute the
new proceeds in U.S. dollars, all in the manner and subject to the
conditions set forth in the deposit agreement.
If we
offer or cause to be offered to the holders of shares any rights to
subscribe for additional shares or any rights of any other nature,
the Depositary shall have discretion as to the procedure to be
followed. The Depositary may
●
to the extent that
the Depositary determines, at the time of the offering of any such
rights, that it is lawful and feasible, and upon provision of any
documents or certifications requested by the Depositary, take such
action as is necessary for all or certain of the rights to be made
available to or exercised by or on behalf of certain or all of the
owners;
●
to the extent that
the Depositary determines that taking of any such action is not
lawful or feasible, sell such rights, and, after deduction or upon
payment of all amounts required to be withheld on account of taxes
or other governmental changes and the fees and expenses of the
Depositary, allocate the new proceeds of such sales for the
accounts of such owners otherwise entitled thereto upon an averaged
or other practical basis without regard to any distinctions among
such owners because of exchange restrictions or the date of
delivery of any GDR or GDRs; or
●
Allow the rights to
lapse.
The
Depositary will not make available to owners any right to subscribe
for or to purchase any securities unless a registration statement
under the Securities Act is in effect as to both the rights and the
securities to which such rights relate or unless the offer and sale
of such securities to such owners is exempt from registration under
the provisions of the Securities Act.
38
Record dates
Whenever any cash
dividend or other cash distribution becomes payable or any
distribution other than cash is made, or whenever rights are issued
with respect to the deposited securities, or whenever, for any
reason, the Depositary causes a change in the number of shares that
are represented by each GDS or whenever the Depositary shall
receive notice of any meeting of holders of deposited securities,
the Depositary will fix a record date for the determination of the
owners who are entitled to receive such dividend, distributions or
rights or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting,
or for fixing the date on or after which each GDS will represent
the changed number of shares, subject to the provisions of the
deposit agreement.
Voting. If requested in writing by us,
as soon as practicable after receipt of notice of a meeting of
holders of shares, or other deposited securities, and to the extent
permitted by law, the Depositary will mail to the owners the
information contained in such notice of meeting. Owners at the
close of business on the record date specified by the Depositary
are entitled, subject to Argentine law, or our by-laws and the
provisions affecting the deposited securities, to instruct the
Depositary as to the exercise of the voting rights, if any,
pertaining to the shares, or other deposited securities, underlying
the GDRs held by such owners. Upon written request, the Depositary
will endeavor to vote or cause to be voted the shares, or other
deposited securities, represented by the GDS held by such owners in
accordance with such instructions, provided that if, after complying with
the foregoing procedures, the Depositary does not receive
instructions from an owner on or before the date established by the
Depositary for such purpose, the Depositary will exercise such
owner’s voting rights relating to the shares or other
deposited securities represented by the GDS as instructed by our
Board of Directors, and if the Board does not provide any
recommendation, in the same manner as the majority of such shares
or other deposited securities not held in the Depositary receipt
facility under the deposit agreement, provided further that the Depositary
shall only be required to vote shares or other deposited securities
in accordance with the foregoing procedures if it is satisfied that
the actions to be voted upon are not contrary to Argentine law or
regulations or our by-laws.
Inspection of transfer books
The
Depositary will keep books at its transfer office in the City of
New York for the registration and transfer of GDRs, which at all
reasonable times will be open for inspection by the owners,
provided that such inspection shall not be for the purpose of
communicating with owners in the interest of a business or object
other than our business or a matter related to the deposit
agreement or the GDRs.
Reports and notices
We will
furnish to the Depositary copies in English of all notices of
shareholders’ meetings, its annual reports to shareholders
and other reports and communications that are made generally
available to shareholders. Upon receipt thereof, the Depositary
will, upon our request, promptly mail such reports to all owners.
The Depositary will make available for inspection by owners at its
principal office any reports and communications received from us
that are made generally available to shareholders.
On or
before the first date on which we give notice, by publication or
otherwise, of any shareholders’ meeting or of any adjourned
shareholders’ meeting, or of the taking of any action in
respect of any cash or other distributions or the offering of any
rights in respect of deposited securities, we agree to transmit to
the Depositary and the custodian a copy of the notice thereof in
the form given to owners. If requested by us, the Depositary will,
at our expense, arrange for the prompt mailing of such notices to
all owners.
We are
required to file certain reports with the SEC pursuant to the
Exchange Act. Such reports will be available for review over the
internet at the SEC’s website at www.sec.gov and at our website at
www.irsa.com.ar. We are exempt
from the rules under the Exchange Act prescribing the furnishing
and content of proxy statements.
39
Changes affecting deposited shares
Upon
any change in par value, split-up, consolidation or any other
reclassification of deposited securities or upon any
recapitalization, reorganization, merger or consolidation or sale
of assets affecting us or to which it is a party, any securities
which shall be received by the Depositary or the custodian in
exchange for, in conversion of or otherwise in respect of deposited
securities shall be treated as new deposited securities under the
deposit agreement, and the Depositary may execute and deliver new
GDRs, or call for the surrender of outstanding GDRs to be exchanged
for additional GDRs specifically describing such new deposited
securities.
Amendment and termination of the deposit agreements
The
form of GDRs and the deposit agreement may at any time be amended
by agreement between us and the Depositary and, except as provided
in the next sentence, such amendment shall require no consent from
owners. Any amendment which imposes or increases any fees or
charges (other than taxes and other governmental charges and
expenses of the Depositary), or which otherwise prejudices any
substantial existing rights of owners, will not take effect as to
outstanding GDRs until the expiration of 30 days after notice of
such amendment has been given to the owners. Each owner, at the
time such amendment becomes effective, will be deemed, by
continuing to hold such GDR or GDRs, to consent and agree to such
amendment and to be bound by the deposit agreement as amended
thereby.
Whenever so
directed by us, the Depositary will terminate the deposit agreement
by mailing notice of such termination to the owners of all GDRs
then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate
the deposit agreement if, at any time 90 days after the Depositary
shall have delivered to us a notice of its election to resign, a
successor Depositary shall not have been appointed and accepted its
appointment as provided in the deposit agreement. If any GDRs
remain outstanding after the date of termination, the Depositary
thereafter will discontinue the registration of transfers of GDRs,
will suspend the distribution of dividends to the owners thereof,
will not give any further notices or perform any further acts under
the deposit agreement except the collection of dividends and other
distributions pertaining to the deposited securities, the sale of
property and rights as provided in the deposit agreement and the
delivery of deposited securities together with dividends or other
distributions, in exchange for surrendered GDRs upon payment of the
Depositary’s fee for such cancellations.
At any
time after the expiration of one year from the date of termination,
the Depositary may sell the deposited securities and hold the net
proceeds, together with any cash then held, unsegregated and
without liability for interest, for the pro rata benefit of the
owners of GDRs which have not theretofore been surrendered and such
owners will thereupon become general creditors of the Depositary
with respect to such net proceeds.
Governing law
The
deposit agreement and the GDRs, and all the rights thereunder, are
governed by and will be interpreted in accordance with the laws of
the State of New York.
Charges of Depositary
The
following charges shall be incurred by any party depositing or
withdrawing shares or by any party surrendering GDRs or to whom
GDRs are issued (including without limitation, issuance pursuant to
a stock dividend or stock split declared by us or an exchange of
stock regarding the GDRs or deposited securities), whichever
applicable:
●
taxes and other
governmental charges,
●
such registration
fees as may from time to time be in effect for the registration of
transfers of shares generally on our register (or our appointed
agent for transfer and registration of the shares) and
40
●
applicable to
transfers of shares to the name of the Depositary or its nominee or
the custodian or its nominee on the making of deposits or
withdrawals hereunder,
●
such cable, telex
and facsimile transmission expenses as are expressly provided in
the deposit agreement to be at the expense of persons depositing
shares or owners,
●
such expenses as
are incurred by the Depositary in the conversion of foreign
currency,
●
a fee not in excess
of USD 5.00 per 100 GDS (or portion thereof) for the execution
and delivery of GDRs pursuant to the deposit of shares or other
deposited securities or distribution in shares or other deposited
securities and the surrender of GDRs for withdrawal of shares and
other deposited securities, and
●
a fee not in excess
of USD 0.02 per GDS (or portion thereof), for any cash
distribution made pursuant to the deposit agreement.
General
Neither
the Depositary nor us nor any of their directors, employees, agents
or affiliates shall incur any liability to any owner if, by reason
of any present or future provision of any law or regulation of the
United States, Argentina or of any other country, or any
governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of our by-laws, or by
reason of any provision of or governing any deposited securities,
or by reason of an act of God or war or other circumstances beyond
its control, the Depositary or us or any of their directors,
employees, agents or affiliates shall be prevented, delayed or
forbidden from, or subjected to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms
of the deposit agreement or the deposited securities it is provided
shall be done or performed. Our obligations and those of the
Depositary under the deposit agreement are expressly limited to
performing their respective duties specified therein without
negligence or bad faith.
The
GDRs are transferable on the books of the Depositary, provided that the Depositary may close
the transfer books at any time or from time to time, after
consultation with us, when deemed expedient by it in connection
with the performance of its duties under the deposit agreement or
at our written request. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination or
surrender of any GDR or the transfer or withdrawal of any deposited
securities, we, the Depositary or the custodian may require payment
from the presenter of the GDRs or the depositor of the shares of a
sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect
thereto and payment of any applicable fees payable by the
owners.
The
Depositary may refuse to deliver GDRs, register the transfer of any
GDRs, make any distributions or deliver any deposited securities
until it has received such proof of citizenship, residence,
exchange control approval, legal or beneficial ownership or other
information as it may deem necessary or proper or as we may
require. The delivery of GDRs against deposits of shares or the
registration of transfers of GDRs may be suspended during any
period when the transfer books of the Depositary or we are closed
if such action is deemed necessary or advisable by the Depositary
or us, in good faith, at any time or from time to time in
accordance with the deposit agreement.
41
DESCRIPTION OF WARRANTS
The warrants will be issued pursuant to a warrant agreement between
us and Computershare, as warrant agent. The following summary of
certain provisions of the warrant agreement and the warrants does
not purport to be complete and is qualified in its entirety by
reference to the warrant agreement and the warrants, including the
definitions of certain terms contained in the warrant agreement and
warrants.
General
The
warrants will be exercisable after 90 days following their
issuance, prior to their expiration on the fifth anniversary of
their issue date, during the nine-day period from and including the
through the
day of each
,
,
and
,
on the day prior to their expiration and on their expiration date
(to the extent such dates are business days in New York City and
Buenos Aires, Argentina). Prior to its expiration, each warrant
will entitle its holder to purchase one common share for an
exercise price of
per common share. The exercise price will be determined by our
board of directors and will be published by us together with the
subscription price on
,
2021. If as of the payment date of the warrant exercise price
payment in U.S. dollars is legally prevented in Argentina, holders
of warrants will be entitled to pay the exercise price in Pesos in
an amount equal to the Peso equivalent (determined on the basis of
the Blue Chip Swap Rate and if such information is not available,
by Bloomberg, for the purchase of pesos in exchange of U.S. dollars
on the business day preceding the payment date of the exercise
price of the warrants of the U.S. dollar exercise price of the
warrants. The exercise price and the number of common shares
issuable on exercise of a warrant are both subject to adjustment in
certain cases. See “—Changes Affecting Warrants”
below.
We have
agreed that until the earlier to occur of the exercise or
expiration of all the warrants, we will keep a registration
statement current with respect to the issuance of our common shares
from time to time upon exercise of the warrants. We will apply for
the listing of the warrants in the BYMA.
The
warrants may be exercised by surrendering to us the warrant
certificates evidencing such warrants, if any, with the
accompanying form of election to exercise, properly completed and
executed, together with payment of the exercise price. Payment of
the exercise price may be made in the form of cash or a certified
or official bank check payable to the order of us. Within five days
that are business days in both Buenos Aires and New York City,
after the submission to us of a properly completed and duly
executed election to exercise, and payment in full of the exercise
price, we will register new common shares the warrant agent will
deliver or cause to be delivered, to or upon the written order of
such holder, stock certificates representing the number of whole
warrant shares. Certificates for warrants will be issued in
registered form as definitive warrant certificates. We or the
warrant agent may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with any registration or transfer or exchange of
warrants.
Fractional shares
No
fractional common share will be issued upon exercise of the
warrants. We will accept exercises of warrants for whole, new
common shares only and will round down any warrant exercise
submitted for fractional, new common shares to the nearest whole
number of new common shares. As a result, you must exercise three
warrants to purchase each common share.
Unexercised warrants
Unexercised
warrants will not entitle their holders to any rights to vote at or
attend our shareholders meetings or to receive any dividends in
respect of our common shares. The holders of the warrants have no
right to vote on matters submitted to our shareholders and have no
right to receive cash dividends until such time as they are
registered holders of the common shares or GDS underlying such
warrants. The holders of the warrants are not entitled to share in
our assets in the event of the liquidation, dissolution or winding
up of our affairs.
42
Changes affecting warrants
Adjustment of the exercise price and the number of our common
shares that may be purchased pursuant to the warrants.
If any
corporate restructuring or action regarding our common shares is
approved, different from any of those mentioned herein and which
may have an impact on or represent a reduction of rights to the
holders of the warrants, we will use our best efforts to negotiate
with the holders of the warrants to set forth new exercise
conditions, seeking to preserve the rights originally granted to
the warrant, its economic and corporate value, the amount of
underlying shares and their exercise price.
Both
the exercise price and the number of our common shares that may be
purchased by exercising the warrants shall be subject to
adjustments in order to preserve the value of the
warrants.
(a) Stock
splits, combinations, etc. If at any time after the date of
issuance of the common shares issued pursuant to this offering,
split, subdivide or combine our common shares, the exercise price
prevailing at that time shall be reduced pro rata in the event of
split or subdivision and increased pro rata in the event of
combination.
(b) Reclassification,
mergers, etc. In case of any reclassification or change of
our outstanding common shares issuable upon exercise of the
warrants, or in case of any consolidation or merger with or into
another corporation (other than a merger in which we are the
continuing corporation and which does not result in any
reclassification or change of the then outstanding common shares or
other capital stock issuable upon exercise of the warrants) or in
case of any sale or conveyance to another corporation of all or
substantially all of our assets, then, as a condition of such
reclassification, change, consolidation, merger, sale or
conveyance, we or such a successor or purchasing corporation, as
the case may be, shall forthwith make lawful and adequate provision
whereby the holder of warrants then outstanding shall have the
right thereafter to receive on exercise of the warrants a number of
shares of the successor or purchasing corporation equal to that
resulting from application of the exchange relation established for
the reclassification, combinations or merger with respect to the
underlying shares acquired pursuant to the exercise of the
warrants.
(c) Issuance
of options or convertible securities. If we shall, at any
time or from time to time after the date hereof, issue, sell,
distribute or otherwise grant in any manner to all holders of our
common shares any rights to subscribe for or to purchase, or any
warrants or options for the purchase of, our common shares or any
capital stock or securities convertible into or exchangeable for
our common shares, whether or not such any rights to subscribe for
or to purchase, or any warrants or options for the purchase of, our
common shares or any capital stock or securities convertible into
or exchangeable for our common shares are immediately exercisable,
and the price per share at which common shares are issuable upon
the exercise of such rights to subscribe for or to purchase, or any
warrants or options for the purchase of, our common shares or any
capital stock or securities convertible into or exchangeable for
our common shares determined by dividing (i) the aggregate amount,
if any, received or receivable by us as consideration for the
issuance, sale, distribution or granting of such rights to
subscribe for or to purchase, or any warrants or options for the
purchase of, our common shares or any capital stock or securities
convertible into or exchangeable for our common shares, plus the
minimum aggregate amount of additional consideration, if any,
payable to us upon the exercise of all such rights to subscribe for
or to purchase, or any warrants or options for the purchase of, our
common shares or any capital stock or securities convertible into
or exchangeable for our common shares, plus, in the case of our
common shares or any capital stock or securities convertible into
or exchangeable for our common shares, the minimum aggregate amount
of additional consideration, if any, payable upon the conversion or
exchange of all such of our common shares or any capital stock or
securities convertible into or exchangeable for our common shares,
by (ii) the total maximum number of our common shares issuable upon
the exercise of all such rights to subscribe for or to purchase, or
any warrants or options for the purchase of, our common shares or
any capital stock or securities convertible into or exchangeable
for our common shares shall be less than the Current Market Price
per common share on the record date for the issuance, sale,
distribution or granting of such rights to subscribe for or to
purchase, or any warrants or options for the purchase of, our
common shares or any capital stock or securities convertible into
or exchangeable for our common shares (the
“Distribution”) then, effective upon such Distribution,
the exercise price shall be reduced to the price determined by
multiplying the
43
exercise price in
effect immediately prior to such Distribution by a fraction, the
numerator of which shall be the sum of (i) the number of our common
shares outstanding (exclusive of any treasury shares) immediately
prior to such Distribution multiplied by the Current Market Price
per common share of on the date of such Distribution plus (ii) the
consideration, if any, received by us upon such Distribution, and
the denominator of which shall be the product of (A) the total
number of our common shares outstanding (exclusive of any treasury
shares) immediately after such Distribution multiplied by (B) the
Current Market Price per common share on the record date for such
Distribution. For purposes of the foregoing, the total maximum
number of common shares issuable upon exercise of all such rights
to subscribe for or to purchase, or any warrants or options for the
purchase of, our common shares or any capital stock or securities
convertible into or exchangeable for our common shares shall be
deemed to have been issued as of the date of such Distribution and
thereafter shall be deemed to be outstanding and we shall be deemed
to have received as consideration therefore such price per share,
determined as provided above.
The
Current Market Price per common share at any date shall be the
average of the daily closing prices for the shorter of (i) the 20
consecutive trading days ending on the last full trading day on the
BYMA prior to the time and date of the earlier to occur of (A) the
date as of which the Current Market Price is to be computed and (B)
the last full trading day on such exchange or market before the
commencement of “ex dividend” trading in our common
shares relating to the event giving rise to the adjustments
required by paragraph (a), (b), (c) or (d) (the “Time of
Determination”); and (ii) the period commencing on the date
next succeeding the first public announcement of the issuance,
sale, distribution or granting in question through such last full
trading day prior to the Time of Determination; provided that in
the case of a firm commitment underwritten public offering, the
Current Market Price shall mean the closing price of our common
shares on the day of the pricing of such offering. The closing
price for any day shall be the last reported sale price regular way
or, in case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for such
day, in each case on the BYMA.
(d) Dividends
and Distributions. If we shall, at any time or from time to
time after the date hereof, distribute to all holders of our common
shares, any dividend as provided for under section 224 of the
Argentine Corporations Law, in cash or in kind, or other
distribution of cash, evidences of our indebtedness, other
securities or other properties or assets, or any options, warrants
or other rights to subscribe for or purchase any of the foregoing,
then (A) the exercise price shall be decreased pro rata by the
percentage in which the distribution exceeds 3% of the Current
Market Price as defined above; and (B) the number of common shares
purchasable upon the exercise of each warrant shall be increased to
a number determined by multiplying the number of common shares so
purchasable immediately prior to the record date for such
distribution by a fraction, the numerator of which shall be the
exercise price in effect immediately prior to the adjustment
required by clause (A) of this sentence and the denominator of
which shall be the exercise price in effect immediately after such
adjustment. The adjustments required by this paragraph (d) shall be
made whenever any such distribution occurs retroactive to the
record date for the determination of shareholders entitled to
receive such distribution.
(e) Issuance
of additional common shares. If at any time we shall (except
as hereinafter provided) issue or sell any additional of our common
shares for consideration in an amount per additional common share
less than the Current Market Price (as defined above), then the
number of our common shares for which the warrants are exercisable
shall be adjusted to equal the product obtained by multiplying the
number of common shares for which the warrants are exercisable
immediately prior to such issue or sale by a fraction (A) the
numerator of which shall be the number of our common shares
outstanding immediately after such issue or sale, and (B) the
denominator of which shall be the sum of (1) the number of our
common shares outstanding immediately prior to such issue or sale,
and (2) the aggregate consideration received from the issuance or
sale of the additional common shares divided by the Current Market
Price (as defined above). No adjustment shall be made under this
paragraph (e) for issuances of our common shares (i) with respect
to options issued under stock options plans as currently in effect
or in effect from time to time or (ii) upon exercise of the
warrants.
(f) Deferral
of certain adjustments. No adjustment to the exercise price
(including the related adjustment to the number of our common
shares purchasable upon the exercise of each warrant) shall be
required hereunder unless such adjustment, together with other
adjustments carried forward as provided below, would result in an
increase or decrease of at least two percent (2%) of the exercise
price; provided that any adjustments which by reason of this
paragraph (f) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. No adjustments
need to be made for a change in the par value of our common
shares.
44
(g) Changes
in options and convertibles securities. If the exercise
price provided for in any rights to subscribe for or to purchase,
or any warrants or options for the purchase of, our common shares
or any capital stock or securities convertible into or exchangeable
for our common shares referred to in paragraph (c) above, the
additional consideration, if any, payable upon the conversion or
exchange of any capital stock or securities convertible into or
exchangeable for our common shares, or the rate at which any
capital stock or securities convertible into or exchangeable for
our common shares are convertible into or exchangeable for our
common shares shall change at any time (other than under or by
reason of provisions designed to protect against dilution upon an
event which results in a related adjustment), the exercise price
then in effect and the number of common shares purchasable upon the
exercise of each warrant shall forthwith be readjusted (effective
only with respect to any exercise of any warrant after such
readjustment) to the exercise price and number of our common shares
so purchasable that would then be in effect had the adjustment made
upon the issuance, sale, distribution or granting of such rights to
subscribe for or to purchase, or any warrants or options for the
purchase of, our common shares or any capital stock or securities
convertible into or exchangeable for our common shares been made
based upon such changed purchase price, additional consideration or
conversion rate, as the case may be, but only with respect to such
rights to subscribe for or to purchase, or any warrants or options
for the purchase of, our common shares or any capital stock or
securities convertible into or exchangeable for our common shares
as then remain outstanding.
(h) Other
adjustments. If at any time, as a result of an adjustment, the
holders of the warrants shall become entitled to receive any of our
securities other than our common shares, thereafter the number of
such other securities so receivable upon exercise of the warrants
and the exercise price applicable to such exercise shall be subject
to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to our
common shares contained herein.
Reservation of common shares
We have
authorized and reserved for issuance such number of common shares
as shall be issuable upon the exercise of all outstanding warrants.
Such common shares, when paid for and issued, will be duly and
validly issued, fully paid and non-assessable, free of preemptive
rights and free from all taxes, liens, charges and security
interests with respect to the issue thereof.
Amendment of the warrant agreement
From
time to time, we and the warrant agent, without the consent of the
holders of the warrants, may amend or supplement the warrant
agreement for certain purposes, including, without limitation,
curing defects or inconsistencies or making any change that does
not materially and adversely affect the interests of the holders of
the warrants. Any amendment or supplement to the warrant agreement
that has a material and adverse effect on the interests of the
holders of the warrants shall require the written consent of the
holders of a majority of the then outstanding warrants. The consent
of each holder of the warrants affected shall be required for any
amendment pursuant to which the exercise price would be increased
or the number of warrant shares purchasable upon exercise of
warrants would be decreased (other than pursuant to adjustments
provided in the warrant agreement).
Governing law
The
warrant agreement and the warrants, and all the rights thereunder,
are governed by and will be interpreted in accordance with the laws
of the State of New York, except for the rights relating to the
underlying common shares which will be governed by the laws of
Argentina.
45
GENERAL
INFORMATION
We have
not retained any dealer managers in connection with this offering.
Our directors, officers and employees may contact the holders of
common share rights and GDS rights by mail, telephone, telegraph or
in person regarding this offering, and may request brokers, dealers
and other nominees to forward this prospectus and related material
to the beneficial owners of the common share rights and GDS rights.
Our directors, officers and employees will not receive any
additional compensation for such services.
General Offering Restrictions
No
action has been or will be taken in any jurisdiction other than
Argentina and the United States, where action for that purpose is
required, which would permit a public offering of the equity
securities which are the subject of the offering contemplated by
this prospectus (the “Securities”) or the possession,
circulation or distribution of this prospectus or any material
relating to this rights offering. Accordingly, the Securities may
not be offered, sold or delivered, directly or indirectly, and
neither this prospectus nor any other offering material or
advertisements in connection with this rights offering may be
distributed or published, in or from any country or jurisdiction,
except under circumstances that will result in compliance with any
applicable rules and regulations of any such country or
jurisdiction.
Brazil
The
offering of the Securities has not been, and will not be, submitted
to, or registered with, the Brazilian Securities Commission
(Comissaõ de Valores
Mobiliários). Accordingly, the Securities may not be
offered or sold in Brazil in circumstances that constitute a public
offering or distribution according to Brazilian laws and
regulations. Documents relating to the offering of the Securities,
including this prospectus, may not be supplied or made generally
available to the public in Brazil or be used in connection with an
offer for subscription or sale to the public in
Brazil.
European Economic Area
In
relation to each Member State of the European Economic Area (each,
a “Relevant Member State”), an offer to the public of
any Securities may not be made in that Relevant Member State,
except that an offer to the public in that Relevant Member State of
any Securities may be made at any time under the following
exemptions under the Prospectus Regulation:
(a) to
any legal entity which is a “qualified investor” as
defined under the Prospectus Regulation;
(b) to
fewer than 150 natural or legal persons (other than
“qualified investors” as defined under the Prospectus
Regulation), per Relevant Member State, subject to obtaining the
prior consent of the Underwriters/Global Co-ordinator for any such
offer; or
(c) in
any other circumstances falling within Article 1(4) of the
Prospectus Regulation,
provided that no
such offer of Securities shall result in a requirement for the
Issuer to publish a prospectus pursuant to Article 3 of the
Prospectus Regulation or a supplemental prospectus pursuant to
Article 23 of the Prospectus Regulation and each person who
initially acquires any Securities or to whom any offer is made will
be deemed to have represented, warranted and agreed to and with the
Issuer that it is a qualified investor within the meaning of
Article 2(e) of the Prospectus Regulation.
In the
case of any Securities being offered to a financial intermediary as
that term is used in Article 1(4) of the Prospectus Regulation,
each financial intermediary will also be deemed to have
represented, warranted and agreed that the Securities acquired by
it in the Offer have not been acquired on a non-discretionary basis
on behalf of, nor have they been acquired with a view to their
offer or resale to, persons in circumstances which may give rise to
an offer of any Securities to the public, other than their offer or
resale in a Relevant Member State to qualified
46
investors as so
defined or in circumstances in which the prior consent of the
Underwriters/Global Co-ordinator has been obtained to each such
proposed offer or resale.
The
Issuer and their affiliates will rely upon the truth and accuracy
of the foregoing representations, warranties and agreements .
Notwithstanding the above, a person who is not a “qualified
investor” and who has notified the Underwriters/Global
Co-ordinator of such fact in writing may, with the prior consent of
the Underwriters/Global Co-ordinator, be permitted to acquire
Securities in the Offer.
For the
purposes of this provision, the expression an “offer to the
public” in relation to any Securities in any Relevant Member
State means the communication in any form and by any means of
sufficient information on the terms of the offer and any Securities
to be offered so as to enable an investor to decide to purchase or
subscribe for any Securities, and the expression “Prospectus
Regulation” means Regulation (EU) 2017/1129.
United Kingdom
An
offer to the public of any Securities may not be made in the United
Kingdom, except that an offer to the public in the United Kingdom
of any Securities may be made at any time under the following
exemptions under the UK Prospectus Regulation:
(a) to
any legal entity which is a “qualified investor” as
defined under the UK Prospectus Regulation;
(b) to
fewer than 150 natural or legal persons (other than
“qualified investors” as defined under the UK
Prospectus Regulation), subject to obtaining the prior consent of
the Underwriters/Global Co-ordinator for any such offer;
or
(c) in
any other circumstances falling within section 86 of the Financial
Services and Markets Act 2000 (as amended,
“FSMA”),
provided that no
such offer of Securities shall result in a requirement for the
Issuer to publish a prospectus pursuant to section 85 of the FSMA
or a supplemental prospectus pursuant to Article 23 of the UK
Prospectus Regulation and each person who initially acquires any
Securities or to whom any offer is made will be deemed to have
represented, warranted and agreed to and with the Issuer that it is
a qualified investor within the meaning of Article 2 of the UK
Prospectus Regulation.
In the
case of any Securities being offered to a financial intermediary as
that term is used in Article 1(4) of the UK Prospectus Regulation,
each financial intermediary will also be deemed to have
represented, warranted and agreed that the Securities acquired by
it in the Offer have not been acquired on a non-discretionary basis
on behalf of, nor have they been acquired with a view to their
offer or resale to, persons in circumstances which may give rise to
an offer of any Securities to the public, other than their offer or
resale in the United Kingdom to qualified investors as so defined
or in circumstances in which the prior consent of the
Underwriters/Global Co-ordinator has been obtained to each such
proposed offer or resale.
The
Issuer and their affiliates will rely upon the truth and accuracy
of the foregoing representations, warranties and agreements .
Notwithstanding the above, a person who is not a “qualified
investor” and who has notified the Underwriters/Global
Co-ordinator of such fact in writing may, with the prior consent of
the Underwriters/Global Co-ordinator, be permitted to acquire
Securities in the Offer.
For the
purposes of this provision, the expression an “offer to the
public” in relation to any Securities in the United Kingdom
means the communication in any form and by any means of sufficient
information on the terms of the offer and any Securities to be
offered so as to enable an investor to decide to purchase or
subscribe for any Securities, and the expression “UK
Prospectus Regulation” means Regulation (EU) 2017/1129 as it
forms part of domestic law by virtue of the European Union
(Withdrawal) Act 2018.
47
Austria
This
prospectus has not been nor will it be approved and/or published
pursuant to the Austrian Capital Markets Act (Kapitalmarktgesetz) as amended. Neither
this prospectus nor any other document connected therewith
constitutes a prospectus according to the Austrian Capital Markets
Act and neither this prospectus nor any other document connected
therewith may be distributed, passed on or disclosed to any other
person in Austria, save as specifically agreed with the dealer
managers. No steps may be taken that would constitute a public
offering of the Securities in Austria and the offering of the
Securities may not be advertised in Austria. The Securities will be
offered in Austria only in compliance with the provisions of the
Austrian Capital Markets Act and all other laws and regulations in
Austria applicable to the offer and sale of the Securities in
Austria.
Belgium
This
prospectus is not intended to constitute a public offer in Belgium
and may not be distributed to the public in Belgium. The Belgian
Commission for Banking, Finance and Insurance has not reviewed nor
approved this prospectus or commented as to their accuracy or
adequacy or recommended or endorsed the purchase of the Securities.
The Securities will not (a) be offered for sale, sold or marketed
in Belgium by means of a public offer within the meaning of the Law
of 16 June 2006 on the public offer of investment instruments and
the admission to trading of investment instruments on a regulated
market; or (b) be sold to any person qualifying as a consumer
within the meaning of Article 1.7 of the Belgian law of 14 July
1991 on consumer protection and trade practices, unless such sale
is made in compliance with this law and its implementing
regulation.
France
No
Securities have been offered or sold or will be offered or sold,
directly or indirectly, to the public in France, except to
permitted investors (“Permitted Investors”) consisting
of persons licensed to provide the investment service of portfolio
management for the account of third parties, qualified investors
(investisseurs
qualifiés) acting for their own account and/or
corporate investors meeting one of the four criteria provided in
Article 1 of Decree No. 2004-1019 of September 28, 2004 and
belonging to a “limited circle of investors”
(cercle restreint
d’investisseurs) acting for their own account with
“qualified investors” and “limited circle of
investors” having the meaning ascribed to them in Article L.
411-2 of the French Code Monétaire et Financier and applicable
regulations thereunder; and the direct or indirect resale to the
public in France of any Securities acquired by any Permitted
Investors may be made only as provided by Articles L. 412-1 and L.
621-8 of the French Code Monétaire et Financier and
applicable regulations thereunder. Neither this prospectus nor any
other materials related to the rights offering or information
contained herein or therein relating to the Securities has been
released, issued or distributed to the public in France except to
qualified investors (investisseurs
qualifiés) and/or to a limited circle of investors
(cercle restreint
d’investisseurs) mentioned above.
Germany
The
Securities will not be offered, sold or publicly promoted or
advertised in the Federal Republic of Germany other than in
compliance with the German Securities Prospectus Act (Gesetz u¨ ber die Erstellung, Billigung
und Vero¨ ffentlichung des Prospekts, der beim o¨
ffentlicken Angebot von Wertpapieren oder bei der Zulassung von
Wertpapieren zum Handel an einem organisierten Markt zu vero¨
ffenlichen ist — Wertpapierprospektgesetz) as of June
22, 2005, effective as of July 1, 2005, as amended, or any other
laws and regulations applicable in the Federal Republic of Germany
governing the issue, offering and sale of securities. No selling
prospectus (Verkaufsprospeckt) within the meaning
of the German Securities Selling Prospectus Act has been or will be
registered within the Financial Supervisory Authority of the
Federal Republic of Germany or otherwise published in
Germany.
48
Italy
The
offering of the Securities has not been registered pursuant to
Italian securities legislation and, accordingly, no Securities may
be offered or sold in the Republic of Italy in a solicitation to
the public, and sales of the Securities in the Republic of Italy
shall be effected in accordance with all Italian securities, tax
and exchange control and other applicable laws and
regulation.
No
offer, sale or delivery of the Securities or distribution of copies
of any document relating to the Securities will be made in the
Republic of Italy except: (a) to “Professional
Investors”, as defined in Article 31.2 of Regulation No.
11522 of 1 July 1998 of the Commissione Nazionale per la Società e la
Borsa (the “CONSOB”), as amended (“CONSOB
Regulation No. 11522”), pursuant to Article 30.2 and 100 of
Legislative Decree No. 58 of 24 February 1998, as amended (the
“Italian Financial Act”); or (b) in any other
circumstances where an express exemption from compliance with the
solicitation restrictions applies, as provided under the Italian
Financial Act or Regulation No. 11971 of 14 May 1999, as
amended.
Any
such offer, sale or delivery of the Securities or any document
relating to the Securities in the Republic of Italy must be: (i)
made by investment firms, banks or financial intermediaries
permitted to conduct such activities in the Republic of Italy in
accordance with Legislative Decree No. 385 of 1 September 1993 as
amended, the Italian Financial Act, CONSOB Regulation No. 11522 and
any other applicable laws and regulations; and (ii) in compliance
with any other applicable notification requirement or limitation
which may be imposed by CONSOB or the Bank of Italy.
Investors should
also note that, in any subsequent distribution of the Securities in
the Republic of Italy, Article 100-bis of the Italian Financial Act
may require compliance with the law relating to public offers of
securities. Furthermore, where the Securities are placed solely
with professional investors and are then systematically resold on
the secondary market at any time in the 12 months following such
placing, purchasers of Securities who are acting outside of the
course of their business or profession may in certain circumstances
be entitled to declare such purchase void and to claim damages from
any authorized person at whose premises the Securities were
purchased, unless an exemption provided for under the Italian
Financial Act applies.
Netherlands
The
Securities may not be offered, sold, transferred or delivered, in
or from the Netherlands, as part of the initial distribution or as
part of any reoffering, and neither this prospectus nor any other
document in respect of the offering may be distributed in or from
the Netherlands, other than to individuals or legal entities who or
which trade or invest in securities in the conduct of their
profession or trade (which includes banks, investment banks,
securities firms, insurance companies, pension funds, other
institutional investors and treasury departments and finance
companies of large enterprises), in which case, it must be made
clear upon making the offer and from any documents or
advertisements in which a forthcoming offering of Securities is
publicly announced that the offer is exclusively made to said
individuals or legal entities.
Spain
The
Securities have not been and will not be marketed, offered or
delivered and the GDSs have not been and will not be marketed,
offered or sold to persons in the Kingdom of Spain other than to
existing shareholders and GDSs holders as permitted by Spanish
law.
This
prospectus has not been verified by or registered in the
administrative registries of the Spanish Comisión Nacional del Mercado de
Valores.
49
Switzerland
The
Securities may be offered in Switzerland only on the basis of a
non-public offering. This prospectus does not constitute an
issuance prospectus according to articles 652a or 1156 of the Swiss
Federal Code of Obligations or a listing prospectus according to
article 32 of the Listing Rules of the Swiss exchange. The
Securities may not be offered or distributed on a professional
basis in or from Switzerland and neither this prospectus or any
other offering material relating to the Securities may be publicly
issued in connection with any such offer or distribution. The
Securities have not been and will not be approved by any Swiss
regulatory authority. In particular, the Securities are not and
will not be registered with or supervised by the Swiss Federal
Banking Commission, and investors may not claim protection under
the Swiss Investment Fund Act.
50
TAXATION
Certain United States Federal Income Tax Consequences
The
following summary describes certain United States federal income
tax consequences of the acquisition, ownership and disposition of
GDS rights, common share rights, GDSs, common shares and warrants
(collectively, “Equity Securities”) by U.S. Holders. As
used herein, the term “U.S. Holder” means a beneficial
owner of Equity Securities that is for United States federal income
tax purposes:
●
an individual
citizen or resident of the United States;
●
a corporation (or
other entity treated as a corporation for United States federal
income tax purposes) created or organized in or under the laws of
the United States, any state thereof or the District of
Columbia;
●
an estate the
income of which is subject to United States federal income taxation
regardless of its source; or
●
a trust if it (1)
is subject to the primary supervision of a court within the United
States and one or more United States persons have the authority to
control all substantial decisions of the trust, or (2) has a valid
election in effect under applicable United States Treasury
regulations to be treated as a United States person.
This
summary assumes that U.S. Holders hold their Equity Securities as
capital assets for United States federal income tax purposes
(generally, property held for investment). This summary does not
represent a detailed description of the United States federal
income tax consequences applicable to you if you are subject to
special treatment under the United States federal income tax laws,
including if you are:
●
a dealer in
securities or currencies;
●
a financial
institution;
●
a regulated
investment company;
●
a real estate
investment trust;
●
an insurance
company;
●
a tax-exempt
organization;
●
a person holding
Equity Securities as part of a hedging, integrated or conversion
transaction, a constructive sale or a straddle;
●
a trader in
securities that has elected the mark-to-market method of accounting
for your securities;
●
a person liable for
alternative minimum tax;
●
a person who owns
or is deemed to own 10% or more of our stock (by vote or
value);
●
a partnership or
other pass-through entity for United States federal income tax
purposes;
●
a person required
to accelerate the recognition of any item of gross income with
respect to Equity Securities as a result of such income being
recognized on an applicable financial statement; or
51
●
a person whose
“functional currency” is not the U.S.
dollar.
If a
partnership (or other entity treated as a partnership for United
States federal income tax purposes) holds Equity Securities, the
tax treatment of a partner will generally depend upon the status of
the partner and the activities of the partnership. If you are a
partner of a partnership holding Equity Securities, you should
consult your tax advisors.
The
discussion below is based upon the provisions of the Internal
Revenue Code of 1986, as amended (the “Code”), and
regulations, rulings and judicial decisions thereunder as of the
date hereof, and such authorities may be replaced, revoked or
modified so as to result in United States federal income tax
consequences different from those discussed below. In addition,
this summary is based, in part, upon representations made by the
Depositary to us and assumes that the deposit agreement, and all
other related agreements, will be performed in accordance with
their terms.
This
summary does not contain a detailed description of all the United
States federal income tax consequences to you in light of your
particular circumstances and does not address the Medicare tax on
net investment income or the effects of any state, local or
non-United States tax laws. You should consult your own tax
advisors concerning the particular United States federal income tax
consequences to you in light of your particular situation as well
as any consequences to you arising under other United States
federal tax laws and the laws of any other taxing
jurisdiction.
Issuance of GDS Rights or Common Share Rights
You
will not be subject to United States federal income tax with
respect to the receipt of GDS rights or common share
rights.
Basis and Holding Period of the GDS Rights and Common Share
Rights
Except
as provided in the following sentence, the basis of the GDS rights
or common share rights distributed to you will be zero. However, if
either (i) the fair market value of the GDS rights or common share
rights distributed to you is 15% or more of the fair market value
(on the date of distribution) of the GDSs or common shares with
respect to which they are distributed or (ii) you irrevocably
elect, in your United States federal income tax return for the
taxable year in which the rights are received, to allocate part of
the basis of such GDSs or common shares to such GDS rights or
common share rights, then upon exercise or sale of the GDS rights
or common share rights your basis in such GDSs or common shares
will be allocated between such GDSs or common shares and the GDS
rights or common share rights in proportion to the fair market
values of each on the date of distribution of the GDS rights or
common share rights. However, no basis will be allocated to any
such GDS rights or common share rights that lapse. Your holding
period in the GDS rights or common share rights will include your
holding period in the GDSs or common shares with respect to which
the rights were distributed.
Expiration of the GDS Rights or Common Share Rights
If you
do not exercise GDS rights prior to the expiration of the GDS
subscription period, you generally will recognize no gain or loss,
except to the extent of gains relating to the sale by the
Depositary of common share rights corresponding to unexercised GDS
rights, as discussed in “The Offering.” If you do not
exercise common share rights prior to the expiration of the common
shares subscription period, you generally will recognize no gain or
loss.
Exercise of the GDS Rights or Common Share Rights
You
will not recognize any gain or loss upon the exercise of the GDS
rights or common share rights. The aggregate basis of GDSs or
common shares and warrants acquired upon exercise of GDS rights or
common share rights will be equal to the sum of your basis in the
GDS rights or common share rights exercised and the
amount
52
paid
upon exercise of those GDS rights or common share rights. The basis
of the GDSs or common shares and warrants will be determined by
allocating such aggregate basis among the GDSs or common shares and
the warrants received in proportion to the relative fair market
values of these securities on the date the GDS rights or common
share rights are exercised. Except as discussed under
“—Passive Foreign Investment Company” below, the
holding period of GDSs or common shares and warrants acquired upon
exercise of GDS rights or common share rights will generally begin
on the date such rights are exercised.
Taxation of Warrants
The
exercise of warrants to purchase common shares generally will not
constitute a taxable event. Accordingly, you will not recognize
gain or loss upon the exercise of warrants. Rather, you will
recognize taxable gain or loss if and when you dispose of the
common shares received pursuant to the exercise of the warrants in
a taxable transaction. Your aggregate tax basis in the common
shares received pursuant to the exercise of the warrants will be
equal to the amount paid upon the exercise of the warrants plus
your basis in the warrants. Except as discussed under
“—Passive Foreign Investment Company” below, the
holding period of the common shares received pursuant to the
exercise of the warrants would begin either on the day or the day
after that the warrants are exercised.
If a
warrant is allowed to lapse unexercised, you will recognize a
capital loss equal to your basis in the warrant. Such loss will be
long-term if the warrant has been held for more than one year. The
deductibility of capital losses is subject to
limitations.
The
exercise price of the warrants will be adjusted in certain
circumstances. Under Section 305(c) of the Code, adjustments (or
failures to make adjustments) that have the effect of increasing a
holder’s proportionate interest in our assets or earnings may
in some circumstances result in a deemed distribution to such
holder. Adjustments to the exercise price made pursuant to a bona
fide reasonable adjustment formula that has the effect of
preventing the dilution of the interest of the holders of the
warrants, however, will generally not be considered to result in a
deemed distribution to holders. Certain of the possible exercise
price adjustments provided in the warrants (including, without
limitation, adjustments in respect of taxable dividends to holders
of our common shares) may not qualify as being pursuant to a bona
fide reasonable adjustment formula. If such adjustments are made, a
holder of a warrant will be deemed to have received a distribution
even though such holder has not received any cash or property as a
result of such adjustments. Any deemed distributions will be
taxable as a dividend, return of capital, or capital gain in
accordance with the earnings and profits rules under the Code. You
should consult your own tax advisors regarding the possible
application of Section 305(c) of the Code.
GDSs
If you
hold GDSs, for United States federal income tax purposes, you
generally will be treated as the owner of the underlying common
shares that are represented by such GDSs. Accordingly, deposits or
withdrawals of common shares for GDSs will not be subject to United
States federal income tax.
Taxation of Dividends
Subject
to the discussion under “—Passive Foreign Investment
Company” below, the gross amount of distributions on the GDSs
or common shares (including any amounts withheld to reflect
Argentine withholding taxes) will be taxable as dividends to the
extent paid out of our current or accumulated earnings and profits,
as determined under United States federal income tax principles.
Such dividends will be includable in your gross income as ordinary
income on the day actually or constructively received by you, in
the case of the common shares, or by the Depositary, in the case of
the GDSs. Such dividends will not be eligible for the dividends
received deduction allowed to corporations under the
Code.
With
respect to non-corporate U.S. Holders, certain dividends received
from a qualified foreign corporation may be subject to reduced
rates of taxation. A foreign corporation is treated as a qualified
foreign corporation with respect to dividends received from that
corporation on common shares (or GDSs representing such common
shares) that are readily tradable on an established securities
market in the United States. United States Treasury Department
guidance indicates that our GDSs (which are listed on the NYSE),
but not our common shares, are readily tradable
53
on an
established securities market in the United States. Thus, we do not
believe that dividends that we pay on our common shares that are
not represented by GDSs currently meet the conditions required for
these reduced tax rates. Furthermore, there can be no assurance
that our GDSs will be considered readily tradable on an established
securities market in later years. Non-corporate holders that do not
meet a minimum holding period requirement during which they are not
protected from the risk of loss or that elect to treat the dividend
income as “investment income” pursuant to Section
163(d)(4) of the Code will not be eligible for the reduced rates of
taxation regardless of our status as a qualified foreign
corporation. In addition, the rate reduction will not apply to
dividends if the recipient of a dividend is obligated to make
related payments with respect to positions in substantially similar
or related property. This disallowance applies even if the minimum
holding period has been met. Non-corporate U.S. Holders should
consult their own tax advisors regarding the application of these
rules given their particular circumstances.
The
amount of any dividend paid in Pesos will equal the U.S. dollar
value of the Pesos received, calculated by reference to the
exchange rate in effect on the date the dividend is actually or
constructively received by you, in the case of common shares, or by
the Depositary, in the case of GDSs, regardless of whether the
Pesos are converted into U.S. dollars at that time. If the Pesos
received as a dividend are converted into U.S. dollars on the date
they are received, you generally will not be required to recognize
foreign currency gain or loss in respect of the dividend income. If
the Pesos received as a dividend are not converted into U.S.
dollars on the date of receipt, you will have a tax basis in the
Pesos equal to their U.S. dollar value on the date of receipt. Any
gain or loss realized on a subsequent conversion or other
disposition of the Pesos will be treated as United States source
ordinary income or loss.
Subject
to certain conditions and limitations, Argentine withholding taxes
on dividends, if any, may be treated as foreign taxes eligible for
credit against your United States federal income tax liability. For
purposes of calculating the foreign tax credit, dividends paid on
the GDSs or common shares will be treated as foreign source income
and will generally constitute passive category income. However, in
certain circumstances, if you have held the GDSs or common shares
for less than a specified minimum period during which you are not
protected from risk of loss, or are obligated to make payments
related to the dividends, you will not be allowed a foreign tax
credit for any Argentine withholding taxes imposed on dividends
paid on the GDSs or common shares. If you do not elect to claim a
United States foreign tax credit, you may instead claim a deduction
for any Argentine withholding taxes, but only for a taxable year in
which you elect to do so with respect to all foreign income taxes
paid or accrued in such taxable year. The rules governing the
foreign tax credit are complex. You are urged to consult your tax
advisors regarding the availability of the foreign tax credit under
your particular circumstances.
To the
extent that the amount of any distribution (including any amounts
withheld to reflect Argentine withholding taxes) exceeds our
current and accumulated earnings and profits for a taxable year, as
determined under United States federal income tax principles, the
distribution will first be treated as a tax-free return of capital,
causing a reduction in the adjusted basis of the GDSs or common
shares, and the balance in excess of adjusted basis will be taxed
as capital gain recognized on a sale or exchange (as discussed
below under “—Sale, Exchange or other Taxable
Disposition of Equity Securities”). However, we do not expect
to keep earnings and profits in accordance with United States
federal income tax principles. Therefore, you should expect that a
distribution will generally be treated as a dividend (as discussed
above).
Distributions of
common shares or rights to subscribe for common shares that are
received as part of a pro rata distribution to all of our holders
generally will not be subject to United States federal income
tax.
Passive Foreign Investment Company
Based
on the past and projected composition of our income and assets, and
the valuation of our assets, we do not believe we were a passive
foreign investment company (a “PFIC”) for our most
recent taxable year, and we do not expect to become a PFIC in the
current taxable year or the foreseeable future, although there can
be no assurance in this regard.
In
general, we will be a PFIC for any taxable year in
which:
54
●
at least 75% of our
gross income is passive income; or
●
at least 50% of the
value (determined based on a quarterly average) of our assets is
attributable to assets that produce or are held for the production
of passive income.
For
this purpose, cash is generally a passive asset and passive income
generally includes dividends, interest, royalties and rents (other
than royalties and rents derived in the active conduct of a trade
or business and not derived from a related person), annuities and
gains from assets that produce passive income. If we own at least
25% (by value) of the stock of another corporation, for purposes of
determining whether we are a PFIC, we will be treated as owning our
proportionate share of the other corporation’s assets and
receiving our proportionate share of the other corporation’s
income.
The
determination of whether we are a PFIC is made annually.
Accordingly, it is possible that we may become a PFIC in the
current or any future taxable year due to changes in our asset or
income composition. In addition, this determination is based on the
interpretation of certain United States Treasury regulations
relating to rental income, which regulations are potentially
subject to differing interpretation.
If we
are a PFIC for any taxable year during which you hold the GDSs or
common shares and you do not make a timely mark-to-market election,
as described below, you will be subject to special tax rules with
respect to any “excess distribution” received and any
gain realized from a sale or other disposition, including a pledge,
of the GDSs or common shares. Distributions received in a taxable
year will be treated as excess distributions to the extent that
they are greater than 125% of the average annual distributions
received during the shorter of the three preceding taxable years or
your holding period for the GDSs or common shares. Under these
special tax rules:
●
the excess
distribution or gain will be allocated ratably over your holding
period for the GDSs or common shares (which, in the case of GDSs or
common shares acquired upon exercise of GDS rights, common share
rights or warrants, would, pursuant to proposed United States
Treasury regulations, generally include the holding period of such
GDS rights, common share rights or warrants);
●
the amount
allocated to the current taxable year, and any taxable year prior
to the first taxable year in which we were a PFIC, will be treated
as ordinary income; and
●
the amount
allocated to each other year will be subject to tax at the highest
tax rate in effect for that year and the interest charge generally
applicable to underpayments of tax will be imposed on the resulting
tax attributable to each such year.
Pursuant to
proposed United States Treasury regulations, an option to acquire
stock of a PFIC is considered PFIC stock for the purpose of
determining tax due on any gain recognized from a disposition of
the option (an exercise of the option, however, is not considered a
disposition for these purposes). Accordingly, if we are a PFIC for
any taxable year during which you hold the GDS rights, common share
rights or warrants, you will generally be subject to the rules
described above with respect to any gain realized from a sale or
other disposition of such GDS rights, common share rights or
warrants (including the sale by the Depositary of common share
rights corresponding to unexercised GDS rights, as discussed in
“The Offering”).
Although
the determination of whether we are a PFIC is made annually, if we
are a PFIC for any taxable year in which you hold Equity
Securities, you will generally be subject to the special tax rules
described above for that year and for each subsequent year in which
you hold the Equity Securities (even if we do not qualify as a PFIC
in such subsequent years). However, if we cease to be a PFIC, you
can generally avoid the continuing impact of the PFIC rules by
making a special election to recognize gain as if your Equity
Securities had been sold on the last day of the last taxable year
during which we were a PFIC. You are urged to consult your tax
advisors about this election.
55
In
certain circumstances, in lieu of being subject to the special tax
rules discussed above, you may make a mark-to-market election with
respect to your GDSs or common shares, provided such GDSs or common
shares are regularly traded on a “qualified exchange or other
market” (within the meaning of the applicable United States
Treasury regulations). Our common shares are listed on the BYMA,
which must meet certain trading, listing, financial disclosure and
other requirements to be treated as a qualified exchange for
purposes of the mark-to-market election, and no assurance can be
given that the common shares are or will continue to be
“regularly traded” for purposes of the mark-to-market
election. Our GDSs are currently listed on the NYSE, which
constitutes a qualified exchange, although there can be no
assurance that the GDSs are or will continue to be “regularly
traded.” The mark-to-market election is currently not
available with respect to GDSs rights, common share rights and
warrants.
If you
make an effective mark-to-market election, for each taxable year
that we are a PFIC you will include as ordinary income the excess
of the fair market value of your GDSs or common shares at the end
of the year over your adjusted tax basis in the GDSs or common
shares. You will be entitled to deduct as an ordinary loss in each
such year the excess of your adjusted tax basis in the GDSs or
common shares over their fair market value at the end of the year,
but only to the extent of the net amount previously included in
income as a result of the mark-to-market election. Your adjusted
tax basis in the GDSs or common shares will be increased by the
amount of any income inclusion and decreased by the amount of any
deductions under the mark-to-market rules. In addition, upon the
sale or other disposition of the GDSs or common shares in a year
that we are a PFIC, any gain will be treated as ordinary income and
any loss will be treated as ordinary loss, but only to the extent
of the net amount of previously included income as a result of the
mark-to-market election.
If you
make a mark-to-market election it will be effective for the taxable
year for which the election is made and all subsequent taxable
years unless the GDSs or common shares are no longer regularly
traded on a qualified exchange or other market, or the Internal
Revenue Service (“IRS”) consents to the revocation of
the election. If, however, you exercise GDS rights, common share
rights or warrants and we were a PFIC for any taxable year during
which you held such GDS rights, common share rights or warrants,
then despite your mark-to-market election, the special tax rules
discussed above may still nonetheless continue to apply. You are
urged to consult your tax advisors about the availability of the
mark-to-market election, and whether making the election would be
advisable in your particular circumstances.
In some
cases, holders of GDSs or common shares (but not holders of GDS
rights, common share rights or warrants) in a PFIC can avoid the
special tax rules described above by electing to treat the PFIC as
a “qualified electing fund” under Section 1295 of the
Code. However, this option will not be available to you because we
do not intend to comply with certain calculation and reporting
requirements necessary to permit you to make this
election.
If we
are a PFIC for any taxable year during which you hold the GDSs or
common shares and any of our non-United States subsidiaries is also
a PFIC, you would be treated as owning a proportionate amount (by
value) of the shares of the lower-tier PFIC for purposes of the
application of the PFIC rules. You are urged to consult your tax
advisors about the application of the PFIC rules to any of our
subsidiaries.
In
addition, non-corporate U.S. Holders will not be eligible for
reduced rates of taxation on any dividends received from us if we
are a PFIC in the taxable year in which such dividends are paid or
in the preceding taxable year. You will generally be required to
file IRS Form 8621 if you hold the GDSs or common shares in any
year in which we are classified as a PFIC.
You are
urged to consult your tax advisors concerning the United States
federal income tax consequences of holding Equity Securities if we
are considered a PFIC in any taxable year.
Sale, Exchange or other Taxable Disposition of Equity
Securities
For
United States federal income tax purposes, you will recognize
taxable gain or loss on any sale, exchange or other taxable
disposition of the Equity Securities (including the sale by the
Depositary of common share rights corresponding to unexercised GDS
rights, as discussed in “The Offering”) in an amount
equal to the
56
difference between
the amount realized for the Equity Securities and your tax basis in
the Equity Securities. Subject to the discussion under
“—Passive Foreign Investment Company” above, such
gain or loss will generally be capital gain or loss and will
generally be long-term capital gain or loss if you have held the
Equity Securities for more than one year. Long-term capital gains
of non-corporate U.S. Holders (including individuals) are eligible
for reduced rates of taxation. The deductibility of capital losses
is subject to limitations.
If an
Argentine tax is withheld on the sale or other disposition of the
Equity Securities, your amount realized will include the gross
amount of the proceeds of that sale or other disposition before
deduction of the Argentine tax. Any gain or loss recognized by you
will generally be treated as United States source gain or loss.
Consequently, in the case of gain from the disposition of Equity
Securities that is subject to Argentine income tax, you may not be
able to benefit from the foreign tax credit for that Argentine
income tax (i.e., because the gain from the disposition would be
United States source), unless you can apply the credit (subject to
applicable limitations) against United States federal income tax
payable on other income from foreign sources. Alternatively, you
may take a deduction for the Argentine income tax if you do not
take a credit for any foreign taxes paid or accrued during the
taxable year. You are urged to consult your tax advisors regarding
the tax consequences if Argentine income tax is imposed on a
disposition of the Equity Securities, including the availability of
the foreign tax credit under your particular
circumstances.
Argentine Personal Assets Tax
Amounts paid on
account of the Argentine personal assets tax, if any, will not be
eligible as a credit against your United States federal income tax
liability, but may be deductible subject to applicable limitations
in the Code.
Information Reporting and Backup Withholding
In
general, information reporting will apply to dividends in respect
of the GDSs or common shares and the proceeds from the sale,
exchange or other disposition of the Equity Securities that are
paid to you within the United States (and in certain cases, outside
the United States), unless you are an exempt recipient. Backup
withholding may apply to such payments if you fail to provide a
taxpayer identification number or certification of exempt status or
fail to report in full dividend and interest income.
Backup
withholding is not an additional tax and any amounts withheld under
the backup withholding rules will be allowed as a refund or a
credit against your United States federal income tax liability
provided the required information is timely furnished to the
IRS.
Argentine Taxation
The
following discussion is a summary of certain Argentine tax
considerations associated with an investment in, ownership or
disposition of common share rights, GDS rights, common shares, GDSs
and warrants by (i) an individual holder that is resident in
Argentina, (ii) an individual holder that is neither domiciled nor
resident in Argentina, (iii) a legal entity organized under the
laws of Argentina and (iv) a legal entity that is not organized
under the laws of Argentina, that does not have a permanent
establishment in Argentina and is not otherwise doing business in
Argentina on a regular basis. The discussion is for general
information only and is based on current Argentine tax laws.
Moreover, while this summary is considered to be a correct
interpretation of existing laws in force as of the date of this
prospectus, no assurance can be given that the courts or
administrative authorities responsible for the administration of
such laws will agree with this interpretation or that changes in
such laws or interpretations will not occur.
PROSPECTIVE
INVESTORS ARE URGED TO CONSULT THEIR OWN TAX ADVISOR REGARDING THE
PARTICULAR TAX CONSEQUENCES ARISING UNDER ANY TAXING
JURISDICTION.
57
Taxation of Dividends
Dividend
distributions which source are profits generated in fiscal years
beginning before January 1, 2018, whether in cash, in shares or in
kind, are not subject to income tax withholding except for the
application of the “Equalization Tax” described
below.
An
income tax withholding will be applied to the amount of dividends
distributed in excess of a company’s net taxable income
determined in accordance with general income tax regulations for
the fiscal years preceding the date of the distribution of such
dividends (the “Equalization Tax”). The legislation
requires that companies withhold 35% of the amount of distributed
dividends in excess of the net taxable income of such distribution,
as determined in accordance with the income tax law. Dividends
distributed by an Argentine company are not subject to this tax to
the extent that those dividends arise from dividend income or other
distributions received by such company from other Argentine
companies.
Dividend
distributions made in kind (other than cash) will be subject to the
same tax rules as cash dividends. Stock dividends on fully paid
shares are not subject to Equalization Tax.
Equalization Tax
will not be applicable on profits generated from fiscal years
beginning on or after January 1, 2018.
Dividend
distributions, other than stock dividends, which source are profits
generated in fiscal years beginning on or after January 1, 2018,
whether in cash, in shares or in kind, made by local entities to
resident individuals, resident undivided estates and foreign
beneficiaries are subject to a withholding tax at a rate of 7% and
at a rate of 13% from fiscal years beginning on or after January 1,
2021.
For
Argentine individuals and undivided estates not registered before
the Argentine tax authorities as taxpayers for income tax purposes
as well as for non-Argentine residents, the dividend tax
withholding will be considered a final payment. Argentine
individuals and undivided estates are not allowed to offset income
arising from the distribution of dividends on Argentine shares with
losses from other types of operations.
Certain
tax treaties contemplate the application of a ceiling tax rate on
dividends (i.e. 10% on gross dividends).
Taxation of Capital Gains
Resident individuals
Capital
gains obtained by resident individuals or undivided estates
situated in Argentina from the sale or disposition of common shares
and other securities (including securities representing shares and
certificates of deposit of shares) are subject to income tax at a
15% rate on net income, unless such securities were traded in a
stock exchange under the supervision of the CNV, in which case an
exemption applies. GDSs are not covered by such
exemption.
Losses
arising from the sale, exchange or other disposition of Equity
Securities (as defined above under “Taxation—Certain
United States Federal Income Tax Consequences”) can be
applied only to offset such capital gains arising from the sale,
exchange or other disposition of these securities, for a five-year
carryover period.
Foreign beneficiaries
Capital
gains of Argentine source (as it is the case of the Equity
Securities) obtained by non-Argentine individuals or non-Argentine
entities from the sale, exchange or other disposition of the Equity
Securities are subject to income tax at a 15% rate on the net
capital gain or at a 13.5% rate on the gross price at the
seller’s election, unless an exemption applies, as set forth
below.
58
Notwithstanding,
Law No. 27,430 established an exemption for foreign beneficiaries
participating in the sale of publicly traded shares traded in stock
exchanges under the supervision of the CNV. Said Law also
established an exemption for capital gains derived from the sale,
exchange or other disposition of share certificates issued abroad
that represent shares issued by Argentine companies (i.e. GDRs), to
the extent the underlying shares are authorized for public offering
by the CNV. The exemptions will apply only if the foreign
beneficiaries do not reside in, and the funds do not arise from,
“non-cooperating” jurisdictions for tax transparency
purposes.
In case
foreign beneficiaries conduct a conversion process of shares that
do not meet the exemption requirements, into securities
representing shares that are exempt from income tax, such
conversion would be considered a taxable transfer for which the
fair market value at the time the conversion takes place should be
considered.
The
sale of an equity interest in a foreign entity could represent a
taxable indirect transfer of Argentine assets (including shares),
if (i) the value of the Argentine assets exceed 30% of the
transaction’s overall value, and (ii) the equity interest
sold (in the foreign entity) exceeds 10%. The tax will also be due
if any of these thresholds were met during the twelve month period
prior to the sale. However, no withholding mechanism is currently
available. The indirect transfer of Argentine assets within the
same economic group would not trigger taxation, provided the
requirements set by regulations have been met.
Local entities
Capital
gains obtained by Argentine entities (generally entities organized
or incorporated under Argentine law, certain traders and
intermediaries, local branches of non-Argentine entities, sole
proprietorships and individuals carrying on certain commercial
activities in Argentina) derived from the sale, exchange or other
disposition of Equity Securities are subject to income tax at the
rate of 30%, for fiscal years beginning on or after January 1, 2018
until December 31, 2020, and to a tax rate of 25% for fiscal years
initiated on or after January 1, 2021.
Losses
arising from the sale, exchange or other disposition of Equity
Securities can be applied only to offset such capital gains arising
from the sale, exchange or other disposition of these securities
for a five-year carryover period.
As
warrants could qualify as speculative derivative financial
instruments within the meaning of the Argentine Income Tax Law,
losses arising from the sale, exchange or other disposition of
warrants could be applied only to offset such capital gains arising
from the sale, exchange or other disposition of these types of
securities.
WE
RECOMMEND PROSPECTIVE INVESTORS TO CONSULT THEIR OWN TAX ADVISOR
REGARDING THE PARTICULAR TAX CONSEQUENCES CONCERNING THE SALE OR
OTHER DISPOSITIONS OF COMMON SHARES, GDSs, COMMON SHARE RIGHTS, GDS
RIGHTS AND WARRANTS.
Value Added Tax
The
sale, exchange, disposition, or transfer of Equity Securities is
not subject to value added tax. Dividend distributions are not
levied with value added tax either.
Personal Assets Tax
Shares, GDSs and warrants
Argentine entities,
such as us, have to pay the Tax on Personal Assets
(“TAP”) corresponding to Argentine and foreign
individuals and foreign entities for the holding of our shares at
December 31 of each year. The applicable tax rate is 0.50% for
fiscal years starting in 2019, inclusive. The tax is levied on the
proportional net worth value (“valor patrimonial
proporcional” in Spanish), or the book value, of the shares
arising from the last
59
balance
sheet of the Argentine entity calculated under Argentine GAAP.
Pursuant to the TAP Law, the Argentine company is entitled to seek
reimbursement of such paid tax from the applicable Argentine
domiciled individuals and/or foreign domiciled
shareholders.
It is
unclear if non-Argentine resident parties are subject to personal
assets tax on GDSs.
Turnover Tax
The
turnover tax is a local tax; therefore, the rules of the relevant
provincial jurisdiction should be considered, which may levy this
tax on the customary purchase and sale, exchange or other
disposition of Equity Securities and/or the collection of dividends
at an average rate of 6%, unless an exemption is applicable. In the
particular case of the City of Buenos Aires, any transaction
involving Equity Securities and/or the collection of dividends and
revaluations is exempt from this tax.
There
is no turnover tax withholding system applicable to the payments
made to foreign beneficiaries.
Stamp Tax
The
stamp tax is a local tax that is generally levied on the
instrumentation of onerous acts executed within a certain
territorial jurisdiction or outside a certain territorial
jurisdiction but with effects in such jurisdiction.
Stamp
taxes may apply in the City of Buenos Aires and in certain
Argentine provinces in case transfer of common shares or GDSs is
performed or executed in such jurisdictions by means of written
agreements.
Tax on Credits and Debits in Bank Accounts
This
tax is levied on (i) debits and credits on accounts opened in
financial institutions located in Argentina; (ii) debits and
credits referred to in (i) carried out without bank accounts by
Argentine financial institutions, regardless of the denomination,
the mechanisms used to carry them out (including cash movements)
and/or their legal instrumentation, and (iii) other transactions or
transfers and deliveries of funds regardless of the person or
entity that performs them and the mechanism used. The general rate
of the tax is 0.6%. An increased rate of 1.2% applies in certain
cases, in which there has been a substitution for the use of a bank
account. Cash withdrawals for the account of legal entities, except
for small and medium-sized companies, are subject to a 1.2%
rate.
Pursuant to Decree
409/2018 (published in the Official Gazette on May 7/2018), 33% of
the tax paid on credits levied at the 0.6% rate and 33% of the tax
paid on transactions levied at the 1.2% tax rate can be used, to
its exhaustion, as a credit against income tax, or the special
contribution on cooperatives capital. With respect to registered
small and medium-sized companies, the percentage that may be used
as credit for income tax may be higher.
Extraordinary Tax on Wealth
On
December 18, 2020, Law 27,605 was published in the Official
Gazette, which introduced an extraordinary and one-time tax on
wealth (“Aporte Extraordinario y Solidario Para Ayudar a
Morigerar los Efectos de la Pandemia'” in Spanish; "ETW") in
order to face the effects of the coronavirus
pandemic.
Individuals and
undivided estates with assets of ARS 200 million or more as of the
date of entry into force of the law, valued according to the rules
of the Personal Assets Tax Law, are subject to the
ETW.
Individuals and
undivided estates (entities are excluded) that are residents of
Argentina are taxed on their assets located in Argentina and
abroad. Argentine nationals with domicile or residence in
“non-cooperating jurisdictions” or “low or no tax
jurisdictions” are considered as residents for purposes of
the ETW.
Non-resident
individuals and undivided estates are taxed only on their assets
located in Argentina.
60
Argentine
individuals domiciled or resident in “non-cooperating
jurisdictions” or “low or no tax jurisdictions”
and non-resident individuals will have to designate a local
substitute taxpayer to pay this contribution.
Residency of
taxpayers is determined according to the legal criteria established
in articles 116 to 123 of the Income Tax Law as of December 31,
2019.
The law
provides for tax rates ranging from 2% up to 3.5% for assets
located in Argentina, and 3% up to 5.25% for foreign assets.
Therefore, the payable tax may start at ARS 4 million. If at least
30% of the financial assets held abroad are repatriated to
Argentina and the repatriation is performed within 60 days of
December 18, 2020, the differential tax rates (i.e., the rates
ranging from 3% to 5.25%) should not apply, to the extent the
repatriated funds remain deposited in an Argentine bank account
until December 31, 2021.
The
Argentine tax authorities are expected to issue further guidance on
the procedure for determining the emergency contribution, due
dates, filings and payment methods for this
contribution.
Court and Other Taxes
In the
event that it becomes necessary to institute legal actions in
relation to the common shares, GDSs and warrants in Argentina, a
court tax (currently at a rate of 3.0%) will be imposed on the
amount of any claim brought before the Argentine courts sitting in
the City of Buenos Aires.
There
are no Argentine federal inheritance or succession taxes applicable
to the ownership, transfer or disposition of our common shares or
GDSs. The province of Buenos Aires established a tax on free
transmission of assets, including inheritance, legacies, donations,
etc. Free transmission of our shares could be subject to this
tax.
Tax Treaties
Argentina has
entered into tax treaties with several countries. There is
currently no tax treaty or convention in effect between Argentina
and the United States.
61
EXPENSES OF THE OFFERING
Assuming that the
proceeds of this offering will be approximately
USD
million, we estimate that our expenses in connection with this
rights offering and the preemptive rights offering in Argentina
will be as follows:
|
Expenses
|
Amount
(in USD) Percentage of netproceeds of thisoffering (%)
|
|
|
U.S.
Securities and Exchange Commission registration fee
|
USD%
|
|
|
NYSE
listing
fee
|
|
|
|
Printing,
engraving and publication
expenses
|
|
|
|
Legal
fees and
expenses
|
%
|
|
|
Accountant
fees and
expenses
|
|
|
|
Miscellaneous
costs
|
|
|
|
Total
|
USD
%
|
|
All
amounts in the table are estimated except the U.S. Securities and
Exchange Commission registration fee, the NYSE listing fee and the
Argentine Comisión Nacional
de Valores and BYMA fees.
The
Depositary has agreed to pay some of these expenses on our behalf,
subject to certain conditions.
62
LEGAL
MATTERS
The
validity of the rights, common shares and other matters governed by
Argentine law will be passed upon for us by Zang, Bergel &
Viñes, Buenos Aires, Argentina. Certain legal matters in
connection with U.S. law will be passed upon for us by Simpson
Thacher & Bartlett LLP.
Saúl Zang and
Salvador D. Bergel are partners of the law firm of Zang, Bergel
& Viñes. Saúl Zang serves as first vice- chairman of
our board of directors. Salvador D. Bergel serves as an alternative
member of our board of directors.
EXPERTS
The financial statements and
management’s assessment of the effectiveness of internal
control over financial reporting (which is included in
Management’s Report on Internal Control over Financial
Reporting) incorporated in this Prospectus by reference to IRSA
Inversiones y Representaciones Sociedad Anónima’s Forms
6-K dated January 5, 2021 have been so incorporated in reliance on
the report (which contains explanatory paragraphs relating to (i)
the fact that the financial statements have been recast as
explained in Note 1 to the financial statements, and (ii)
management’s plans to mitigate the impact of the current
macroeconomic context and COVID-19, as described in Note 34 to the
financial statements) of Price Waterhouse & Co. S.R.L., Buenos
Aires, Argentina, member firm of PricewaterhouseCoopers, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN
FIND MORE INFORMATION
We have
filed a Registration Statement on Form F-3 with the SEC regarding
this offering. This prospectus, which is part of the registration
statement, does not contain all the information included in the
registration statement, and you should refer to the registration
statement and its exhibits to read that information. Reference in
this prospectus to any of our contract or other documents are not
necessarily complete, and you should refer to the exhibits attached
to the registration statement for copies of the actual contract or
document. We are subject to the informational reporting
requirements of the Exchange Act, and under such Act, we file
reports and other information with the SEC. You can read our SEC
filings, including the registration statement, over the internet at
the SEC’s website at www.sec.gov and at our website at
www.irsa.com.ar.You may also request a copy of those filings, at no
cost, by writing to us at Carlos Della Paolera 261, C1001ADA Buenos
Aires, Argentina, Tel. +54 (11) 4323-7400.
63
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
8.
Indemnification
of Directors and Officers
Neither
the laws of Argentina nor the Registrant’s by-laws or other
constitutive documents provide for indemnification of directors or
officers of the Registrant. The Registrant maintains
directors’ and officers’ liability insurance covering
its directors and executive officers with respect to general civil
liability, including liabilities under the Securities Act, which he
or she may incur in his or her capacity as such.
Item
9.
Exhibits
|
3.1
|
|
|
4.6
|
|
|
4.7
|
|
|
5.1
|
|
|
5.2
|
|
|
8.1
|
|
|
8.2
|
|
|
21.1
|
|
|
23.1*
|
|
|
23.2
|
|
|
23.3
|
|
|
24.1
|
|
*
Previously
filed.
Item
10
Undertakings
The
undersigned Registrant hereby undertakes:
(1)
To file, during any
period in which offers or sales are being made, a post-effective
amendment to this registration statement:
64
(i)
To include any
prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii)
To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
(§ 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement.
(iii)
To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement;
Provided, however, That:
(A)
Paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-8 (§ 239.16b of this
chapter), and the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the registration statement; and
(B)
Paragraphs
(a)(1)(i), (ii), and (iii) of this section do not apply if the
registration statement is on Form S-1 (§ 239.11 of this
chapter), Form S-3 (§ 239.13 of this chapter), Form SF-3
(§ 239.45 of this chapter) or Form F-3 (§ 239.33 of this
chapter) and the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the registration statement, or, as to a registration
statement on Form S-3, Form SF-3 or Form F-3, is contained in a
form of prospectus filed pursuant to § 230.424(b) of this
chapter that is part of the registration statement.
(C)
Provided further, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is for an
offering of asset-backed securities on Form SF-1 (§ 239.44 of
this chapter) or Form SF-3 (§ 239.45 of this chapter), and the
information required to be included in a post-effective amendment
is provided pursuant to Item 1100(c) of Regulation AB (§
229.1100(c)).
(2)
That, for the
purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3)
To remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination
of the offering.
65
(4)
If the registrant
is a foreign private issuer, to file a post-effective amendment to
the registration statement to include any financial statements
required by Item 8.A of Form 20-F (§ 249.220f of this chapter)
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Act (15 U.S.C. 77j(a)(3)) need not be
furnished, provided that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is
at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration
statements on Form F-3 (§ 239.33 of this chapter), a
post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act
or Item 8.A of Form 20-F if such financial statements and
information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Form F-3.
(5)
That, for the
purpose of determining liability under the Securities Act of 1933
to any purchaser:
(i)
If the registrant
is relying on Rule 430B (§ 230.430B of this
chapter):
(A)
Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) (§
230.424(b)(3) of this chapter) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement;
and
(B)
Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
(§ 230.424(b)(2), (b)(5), or (b)(7) of this chapter) as part
of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) (§
230.415(a)(1)(i), (vii), or (x) of this chapter) for the purpose of
providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(ii)
If the registrant
is subject to Rule 430C (§ 230.430C of this chapter), each
prospectus filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A (§ 230.430A of this chapter), shall be
deemed to be part of and included in the registration statement as
of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such
66
first
use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(iii)
If the registrant
is relying on § 230.430D of this chapter:
(A)
Each prospectus
filed by the registrant pursuant to § 230.424(b)(3) and (h) of
this chapter shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B)
Each prospectus
required to be filed pursuant to § 230.424(b)(2), (b)(5), or
(b)(7) of this chapter as part of a registration statement in
reliance on § 230.430D of this chapter relating to an offering
made pursuant to § 230.415(a)(1)(vii) or (a)(1)(xii) of this
chapter for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 (15 U.S.C. 77j(a))
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in § 230.430D of this chapter, for liability purposes
of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(6)
That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i)
Any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424 (§
230.424 of this chapter);
(ii)
Any free writing
prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The portion of any
other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
(iv)
Any other
communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
67
(7)
If the registrant
is relying on § 230.430D of this chapter, with respect to any
offering of securities registered on Form SF-3 (§ 239.45 of
this chapter), to file the information previously omitted from the
prospectus filed as part of an effective registration statement in
accordance with §§ 230.424(h) and 230.430D of this
chapter.
68
SIGNATURES
Pursuant to the
requirements of the U.S. Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-3 an has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Buenos
Aires, Republic of Argentina, on April 13, 2021.
IRSA
INVERSIONES Y REPRESENTACIONES SOCIEDAD ANÓNIMA
By:
/s/ Eduardo S.
Elsztain
Name:
Eduardo S.
Elsztain
Title:
Chairman of the
Board of Directors
Pursuant to the
requirements of the U.S. Securities Act of 1933, this Registration
Statement has been signed by the following persons in the
capacities indicated below on January 5, 2021. Each person whose
signature appears below hereby appoints Saúl Zang and
Alejandro G. Elsztain, and each of them singly, such person’s
true and lawful attorneys, with full power to them and each of them
to sign, for such person and in such person’s name and
capacity indicated below, any and all amendments and post-effective
amendments to this Registration Statement, and generally to do all
things in their names in their capacities as officers and directors
to enable the registrant to comply with the provisions of the U.S.
Securities Act of 1933 and all requirements of the
SEC.
|
Name
|
Title
|
|
/s/
Eduardo S. Elsztain
|
Chairman
of the Board of Directors
|
|
Name:
Eduardo S. Elsztain
|
(Principal
Executive Officer)
|
|
/s/
Matías I. Gaivironsky
|
Chief
Financial and Administrative Officer
|
|
Name:
Matías I. Gaivironsky
|
(Principal
Financial and Accounting Officer)
|
|
/s/
Saúl Zang
|
First
Vice-Chairman of the Board of Directors
|
|
Name:
Saúl Zang
|
|
|
/s/
Alejandro G. Elsztain
|
Second
Vice-Chairman of the Board of Directors
|
|
Name:
Alejandro G. Elsztain
|
|
|
*
|
Director
|
|
Name:
Fernando A. Elsztain
|
|
|
Cedric
D. Bridger
|
Director
|
|
Name:
Cedric D. Bridger
|
|
|
*
|
Director
|
|
Name:
Marcos Fischman
|
|
|
Mauricio
E. Wior
|
Director
|
|
Name:
Mauricio E. Wior
|
|
|
*
|
Director
|
|
Name:
Daniel Ricardo Elsztain
|
|
|
*
|
Director
|
|
Name:
Oscar Pedro Bergotto
|
|
|
Demian
Brener
|
Director
|
|
Name:
Demian Brener
|
|
|
Maria
Julia Bearzi
|
Director
|
|
Name:
Maria Julia Bearzi
|
|
|
Liliana
L. De Nadai
|
Director
|
|
Name:
Liliana L. De Nadai
|
|
|
* By:
/s/ Alejandro G. Elsztain
|
|
|
Name:
Alejandro G. Elsztain,
|
|
|
as
Attorney-in-Fact
|
|
|
|
|
|
Authorized
Representative in the United States
|
|
|
/s/
Donald J. Puglisi
|
Authorized
U.S. Representative
|
|
Name:
Donald J. Puglisi
|
Puglisi
& Associates
|
70
Exhibit 5.2
[Simpson
Thacher & Bartlett LLP Letterhead]
April
13, 2021
IRSA
Inversiones y Representaciones Sociedad Anónima
Carlos
della Paolera 261
Buenos
Aires
Argentina
Ladies
and Gentlemen:
We have
acted as United States counsel to IRSA Inversiones y
Representaciones Sociedad Anónima, a sociedad anónima
organized under the laws of the Republic of Argentina (the
“Company”), in connection with the Registration
Statement on Form F-3 (the “Registration Statement”)
filed by the Company with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as
amended, relating to the offering by the Company of rights to
subscribe for an aggregate of 80,000,000 common shares, par value
Ps.1.00 per share (the “Shares”), including Shares in
the form of American Depositary Shares, and 80,000,000 warrants to
purchase an additional 80,000,000 Shares (the
“Warrants”). The Warrants will be issued under a
warrant agreement (the “Warrant Agreement”) to be
entered among the Company, and Computershare Trust Company, N.A.,
as Warrant Agent (the “Warrant Agent”).
We have
examined the Registration Statement. In addition, we have examined,
and have relied as to matters of fact upon, originals, or
duplicates or certified or conformed copies, of such records,
agreements, documents and other instruments and such certificates
or comparable documents of public officials and of officers and
representatives of the Company and have made such other
investigations as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth.
In
rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as forms or as duplicates or certified or conformed
copies and the authenticity of the originals of such latter
documents.
In
rendering the opinion set forth below, we have assumed that the
Warrant Agreement and the Warrants will constitute valid, legally
binding and enforceable obligations of the Company under the law of
Argentina and will not breach or violate any agreement or
instrument governed by Argentine or other non-U.S. law that is
binding on the Company (which matters are addressed in the legal
opinion of Zang, Bergel & Viñes, Argentine counsel to the
Company, dated the date hereof and filed as Exhibit 5.1 to the
Registration Statement). We have also assumed that the Warrant
Agreement and the Warrants will, as applicable, constitute valid
and legally binding obligations of the Warrant Agent and the
Argentine Representative enforceable in accordance with their
terms.
Based
on the foregoing, and subject to the qualifications, assumptions
and limitations stated herein, we are of the opinion that, assuming
the due execution, countersignature, issuance and delivery of the
Warrants in the form filed as an exhibit to the Registration
Statement and in accordance with the provisions of the Warrant
Agreement, the Warrants will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms.
Our
opinion set forth above is subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing and
(iv) to the effects of the possible judicial application of foreign
laws or foreign government or judicial action in each case
affecting creditors’ rights.
We do
not express any opinion herein concerning any law other than the
law of the State of New York and the federal law of the United
States.
We
hereby consent to the filing of this opinion letter as Exhibit 5.2
to the Registration Statement and to the use of our name under the
caption “Legal Matters” in the prospectus included in
the Registration Statement.
Very
truly yours,
/s/
SIMPSON THACHER & BARTLETT LLP
SIMPSON
THACHER & BARTLETT LLP
Exhibit 8.2
[Simpson
Thacher & Bartlett LLP Letterhead]
April
13, 2021
IRSA
Inversiones y Representaciones Sociedad Anónima
Carlos
della Paolera 261
Buenos
Aires
Argentina
Ladies
and Gentlemen:
We have
acted as United States tax counsel to IRSA Inversiones y
Representaciones Sociedad Anónima, an Argentine corporation
(the “Company”), in connection with the Registration
Statement on Form F-3 (the “Registration Statement”)
filed by the Company with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, relating to the
offering by the Company of rights (“Rights”) to
subscribe for an aggregate of 80,000,000 common shares, par value
Ps.1.00 per share (“Common Shares”), including common
shares in the form of American Depositary Shares
(“ADSs”), and warrants (“Warrants”) to
purchase an additional 80,000,000 Common Shares.
We have
examined the Registration Statement. In addition, we have examined,
and have relied as to matters of fact upon, originals, or
duplicates or certified or conformed copies, of such records,
agreements, documents and other instruments and such certificates
or comparable documents of public officials and of officers and
representatives of the Company and have made such other
investigations as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth.
In
rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies and
the authenticity of the originals of such latter
documents.
Based
upon the foregoing, and subject to the qualifications, assumptions
and limitations stated herein and in the Registration Statement,
the statements set forth in the Registration Statement under the
caption “Taxation – Certain United States Federal
Income Tax Consequences,” insofar as they purport to
constitute summaries of matters of United States federal tax law
and regulations or legal conclusions with respect thereto,
represent our opinion as to the material United States federal
income tax consequences of the ownership of Rights, Common Shares,
ADSs and Warrants by United States holders as of the date
hereof.
We do
not express any opinion herein concerning any law other than the
federal tax law of the United States.
We
hereby consent to the filing of this opinion letter as Exhibit 8.2
to the Registration Statement and to the use of our name under the
caption “Legal Matters” in the Prospectus included in
the Registration Statement.
Very
truly yours,
/S/
SIMPSON THACHER & BARTLETT LLP
SIMPSON
THACHER & BARTLETT LLP
LIST OF SUBSIDIARIES
The following table lists our subsidiaries and their jurisdiction
of incorporation as of December 31, 2020:
|
|
|
|
% of
ownership interest held by the Group
|
|
Name
of the entity
|
Country
|
Main
activity
|
As
of December 31, 2020
|
|
IRSA’s
direct interest:
|
|
|
|
|
IRSA CP(1)
|
Argentina
|
Real
estate
|
79.92%
|
|
E-Commerce Latina
S.A.
|
Argentina
|
Investment
|
100.00%
|
|
Efanur
S.A.
|
Uruguay
|
Investment
|
100.00%
|
|
Hoteles Argentinos
S.A.U.
|
Argentina
|
Hotel
|
100.00%
|
|
Inversora
Bolívar S.A.
|
Argentina
|
Investment
|
100.00%
|
|
Llao Llao Resorts
S.A.(2)
|
Argentina
|
Hotel
|
50.00%
|
|
Nuevas Fronteras
S.A.
|
Argentina
|
Hotel
|
76.34%
|
|
Palermo Invest
S.A.
|
Argentina
|
Investment
|
100.00%
|
|
Ritelco
S.A.
|
Uruguay
|
Investment
|
100.00%
|
|
Tyrus
S.A.
|
Uruguay
|
Investment
|
100.00%
|
|
U.T. IRSA y
Galerías Pacifico(2)
|
Argentina
|
Investment
|
50.00%
|
|
IRSA
CP’s direct interest:
|
|
|
|
|
Arcos del Gourmet
S.A.
|
Argentina
|
Real
estate
|
90.00%
|
|
Emprendimiento
Recoleta S.A.
|
Argentina
|
Real
estate
|
53.68%
|
|
Fibesa
S.A.(3)
|
Argentina
|
Real
estate
|
100.00%
|
|
Panamerican Mall
S.A.
|
Argentina
|
Real
estate
|
80.00%
|
|
Shopping
Neuquén S.A.
|
Argentina
|
Real
estate
|
99.95%
|
|
Torodur
S.A.
|
Uruguay
|
Investment
|
100.00%
|
|
EHSA
|
Argentina
|
Investment
|
70.00%
|
|
Centro de
Entretenimiento La Plata
|
Argentina
|
Real
estate
|
100.00%
|
|
Pareto
S.A.
|
Argentina
|
design and software
development
|
91.96%
|
|
Tyrus
S.A.’s direct interest:
|
|
|
|
|
DFL and DN
BV
|
Bermuda’s /
Netherlands
|
Investment
|
97.04%
|
|
I Madison
LLC
|
USA
|
Investment
|
—
|
|
IRSA Development
LP
|
USA
|
Investment
|
—
|
|
IRSA International
LLC
|
USA
|
Investment
|
100.00%
|
|
Jiwin
S.A.
|
Uruguay
|
Investment
|
100.00%
|
|
Liveck
S.A.
|
Uruguay
|
Investment
|
100.00%
|
|
Real Estate
Investment Group V LP (REIG V)
|
Bermuda’s
|
Investment
|
—
|
|
Real Estate
Strategies LLC
|
USA
|
Investment
|
100.00%
|
|
Efanur
S.A.’s direct interest:
|
|
|
|
|
Real Estate
Investment Group VII LP (REIG VII)
|
Bermuda’s
|
Investment
|
100.00%
|
(1)
Includes interest
held through E-Commerce Latina S.A. and Tyrus S.A..
(2)
The Company has
consolidated the investment in Llao Llao Resorts S.A. and UT IRSA
and Galerías Pacífico considering its equity interest and
a shareholder agreement that confers it majority of votes in the
decision making process.
(3)
Includes interest
held through Ritelco S.A. and Torodur S.A.
April 13, 2021
IRSA Inversiones y Representaciones Sociedad
Anónima
Carlos Della Paolera 261, Piso 9 º
Argentina
Ladies and Gentlemen:
We have acted as local Argentine counsel to IRSA
Inversiones y Representaciones Sociedad Anónima . (the
“Company”), a sociedad
anónima organized
under the laws of the Republic of Argentina in connection with the
Registration Statement on Form F-3 (the “Registration
Statement”) filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
relating to the offering by the Company of rights
(“Rights”) to subscribe for an aggregate of 80,000,000
new common shares, par value Ps.1.00 per share, (“Common
Shares”) including common shares in the form of Global
Depositary Shares (“GDSs”) and warrants
(“Warrants”) to purchase an additional 80,000,000
common shares.
We
have examined the Registration Statement. We have also examined the
originals, or duplicates or certified or conformed copies, of such
corporate and other records, agreements, documents and other
instruments and have made such other investigations as we have
deemed relevant and necessary in connection with the opinion
hereinafter set forth. As to questions of fact material to this
opinion, we have relied upon certificates or comparable documents
of public officials and of officers and representatives of the
Company.
We
have not conducted any investigation of the laws of any
jurisdiction other than Argentina. This opinion is given solely in
respect of the laws of Argentina as of the date hereof, and not in
respect of any other jurisdiction’s law. We have assumed that
there is nothing in any other jurisdiction’s law that affects
our opinion. In particular, we did not make independent
investigations of the Federal Income Tax Law of the United States.
In relation to any matters in connection with the Federal Income
Tax Law of the United States, we understand that you rely on the
opinion issued by Simpson Thacher & Bartlett LLP, acting as
United States counsel for the Company, dated as of the date hereof
and delivered pursuant to the Registration Statement.
In
giving this opinion we have made the following
assumptions:
|
|
(i)
|
that
all documents submitted to us as facsimile copies or specimen
documents conform to their originals;
|
|
|
(ii)
|
that
all documents submitted to us as originals are
authentic;
|
|
|
(iii)
|
that
all signatures on any documents submitted to us as originals,
certified copies or copies are genuine;
|
|
|
(iv)
|
that,
except as specifically otherwise mentioned, there is no provision
of the law of any jurisdiction other than Argentina which has any
implication in relation to the opinion expressed
herein;
|
Based
upon the foregoing, and subject to the qualifications, assumptions
and limitations stated herein, we are of the opinion that the
statements set forth in the Registration Statement under the
caption “Argentine Taxation,” insofar as they purport
to constitute summaries of matters of Argentine tax law and
regulations or legal conclusions with respect thereto represent our
opinion as to the material Argentine tax consequences of the
ownership of Rights, Common Shares, GDSs and Warrants by
(i) an individual holder that is resident in Argentina,
(ii) an individual holder that is neither domiciled nor
resident in Argentina, (iii) a legal entity organized under
the laws of Argentina and (iv) a legal entity that is not
organized under the laws of Argentina, that does not have a
permanent establishment in Argentina and is not otherwise doing
business in Argentina on a regular basis, as of the date
hereof.
This
opinion is dated as of today and we expressly disclaim any
responsibility to advise with respect to any development or
circumstance of any kind, including any change of law or fact which
may occur after the date of this opinion, even though such
development, circumstance or change may affect the legal analysis,
legal conclusion or any other matter set forth in or relating to
this opinion. Accordingly, you should seek advice of your counsel
as to the adequate application of this opinion at such
time.
We
hereby consent to the filing of this opinion letter as Exhibit 8.1
to the Registration Statement and to the use of our name under the
caption “Legal Matters” in the Prospectus included in
the Registration Statement.
Yours faithfully,
 |
|
|
|
|
|
/s/
Carolina Zang
|
|
p/
Estudio Zang, Bergel & Viñes
|
Exhibit 4.7
WARRANT AGENT AGREEMENT
This
Warrant Agent Agreement (the “Warrant Agent Agreement”) made as
of April , 2021, is
between IRSA Inversiones y Representaciones Sociedad Anónima
(“IRSA”), an
Argentine company, (the “Company”), an Argentine company,
and Computershare, Inc., as warrant agent (the “Warrant Agent”).
WHEREAS, the
Company has determined to issue and deliver to shareholders, among
other securities, warrants (the “Warrants”) to purchase up to an
aggregate of 80,000,000 shares of common stock of the Company (the
“Warrant
Shares”), pursuant to a registered offering by the
Company of rights to subscribe for new common shares and receive
warrants, as set forth in registration statements on Form F-3 filed
with the Securities and Exchange Commission on January 5, 2021 and
April , 2021 (the
“Registration
Statements”). Each Warrant evidences the right of the
holder thereof to purchase, for an exercise price to be determined,
one Warrant Share, as subject to adjustment as described below and
in the Warrant Certificate (the “Exercise Price”);
WHEREAS, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise
of the Warrants;
WHEREAS, the
Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised,
and the respective rights, limitation of rights and immunities of
the Company, the Warrant Agent and the holders of the Warrants;
and
WHEREAS, all acts
and things have been done and performed which are necessary to make
the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided
herein, the legally valid and binding obligations of the Company,
and to authorize the execution and delivery of this Warrant Agent
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment
of Warrant Agent
. The
Company hereby appoints the Warrant Agent to act as agent for the
Company for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the
express terms and conditions set forth in this Warrant Agent
Agreement (and no implied terms or conditions).
2. Warrants
.
2.1 Form of Warrant. Each Warrant
shall be (a) issued in book-entry form and evidenced by a global
warrant certificate, substantially in the form of Exhibit A hereto
(including the DTC legend hereon) or(b) in registered form as
non-global definitive warrant certificates, in substantially the
form of Exhibit A attached hereto (but excluding the DTC legend
hereon), the provisions of which are incorporated herein, and
signed by, or bear the facsimile or .pdf signature of, any two of
the Chief Executive Officer, Chief Financial Officer of the Company
and such other officers of the Company as the Company may designate
(each an “Authorized
Signatory” and, collectively, the “Authorized Signatories”). In the
event the person whose facsimile or .pdf signature has been placed
upon any Warrant shall have ceased to serve in the capacity in
which such person signed the Warrant before such Warrant is issued,
it may be issued with the same effect as if he or she had not
ceased to be such at the date of issuance. All of the Warrants
shall initially be represented by one or more book-entry positions
and evidenced by a global warrant certificate (the
“Global Book-Entry
Warrant”). In the event of any conflict between the
terms of the Warrant, in the form of Exhibit A attached hereto, and
the terms of this Warrant Agency Agreement, the terms of the
Warrant shall control; provided, that, with respect to the powers,
rights, duties, obligations and immunities of the Warrant Agent,
this Warrant Agency Agreement shall govern and
control.
2.2 Registration.
2.2.1 Warrant
Register. The Warrant Agent shall maintain books
(“Warrant
Register”) for the registration of the original
issuance and registration of transfers of the Warrants. Upon the
initial issuance of the Warrants, at the Company’s written
request, the Warrant Agent shall issue and register the Warrants in
the names of the respective holders thereof in such denominations
and otherwise in accordance with the written instructions delivered
to the Warrant Agent by the Company. To the extent the Warrants are
DTC eligible as of the date of issuance (the “Issuance Date”), all of the
Warrants shall be represented by one Global Book-Entry Warrant
deposited with the Depository Trust Company (the
“Depository”)
and registered in the name of Cede & Co., a nominee of the
Depository. Ownership of beneficial interests in the Book-Entry
Warrant shall be shown on, and the transfer of such ownership shall
be effected through, records maintained (i) by the Depository or
its nominee for the Book Entry Warrant; (ii) by institutions that
have accounts with the Depository (such institution, with respect
to a Warrant in its account, a “Participant”); or (iii) directly
on the book-entry records of the Warrant Agent with respect only to
owners of beneficial interests that represent such direct
registration. If the Warrants are not DTC Eligible as of the
Issuance Date or the Depository subsequently ceases to make its
book-entry settlement system available for the Warrants, the
Company may instruct the Warrant Agent in writing regarding making
other arrangements for book-entry settlement within ten (10) days
after the Depository ceases to make its book-entry settlement
available. In the event that the Company does not make alternative
arrangements for book-entry settlement within ten (10) days or the
Warrants are not eligible for, or it is no longer necessary to have
the Warrants available in, book-entry form, the Warrant Agent shall
provide written instructions to the Depository to deliver to the
Warrant Agent for cancellation each Book-Entry Warrant, and the
Company shall instruct the Warrant Agent to deliver to the
Depository definitive certificates in physical form evidencing such
Warrants in substantially the form annexed hereto as Exhibit A (but excluding the
DTC legend thereon).
2.2.2 Registered
Holder. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem
and treat the person in whose name such Warrant shall be registered
in the Warrant Register (“Registered Holder”), as the
absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing
on the Warrant Certificate (as defined below) made by anyone other
than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to
the contrary. Any person in whose name ownership of a beneficial
interest in the Warrants evidenced by a Book-Entry Warrant is
recorded in the records maintained by the Depository or its nominee
shall be deemed the “beneficial owner”
thereof.
2.2.3 Notwithstanding
anything contained herein, a Registered Holder or if the Book Entry
Warrants are deposited with the Depositary, the beneficial owner,
has the right, upon written notice to the Warrant Agent (in form
and substance acceptable to the Warrant Agent), to request a
physical warrant certificate in substantially the form of
Exhibit A, attached
hereto, for the same number of Warrants as are registered in the
name of such Registered Holder or beneficial owner, as applicable,
in the records maintained by the Warrant Agent (a
“Warrant
Certificate”). Such Warrant Certificate shall be dated
the original issue date of the Warrants and shall be executed by an
Authorized Signatory. The Warrant Agent shall deliver the Warrant
Certificate to the Registered Holder as promptly as practicable. To
the extent that the Company requests that the Warrant Agent
delivers a Warrant Certificate to a Registered Holder or beneficial
owner, as applicable, prior to the closing date of the transactions
under the Registration Statements, then the Warrant Agent shall
deliver such Warrant Certificate as promptly as practicable
following the receipt of such request.
2.3.1 Transfer
and Exchange of Warrant Certificates. When Warrant
Certificates are presented to the Warrant Agent with a request:
(i) to register the transfer of the Warrant Certificates; or
(ii) to exchange such Warrant Certificates for an equal number
of Warrant Certificates of other authorized denominations, the
Warrant Agent shall register the transfer or make the exchange as
requested if the requirements under this Agreement as set forth in
this Section 2.3 for such
transactions are met; provided, however, that the Warrant
Certificates presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in the form of Exhibit B hereto and
satisfactory to the Company, duly executed by the Holder thereof or
by his attorney, duly authorized in writing, accompanied by a
signature guarantee and such other documentation as the Warrant
Agent may reasonably request.
2.3.2 Restrictions
on Transfer of a Definitive Warrant for a Beneficial Interest in a
Global Book-Entry Warrant. A Definitive Warrant may not be
exchanged for a beneficial interest in a Global Book-Entry Warrant
except upon satisfaction of the requirements set forth below. Upon
receipt by the Warrant Agent of a Definitive Warrant, duly endorsed
or accompanied by the instrument of transfer, attached hereto as
Exhibit B in form satisfactory to the Company, together with
written instructions directing the Warrant Agent to make, or to
direct the Depositary to make, an endorsement on the Global
Book-Entry Warrant to reflect an increase in the aggregate amount
of the Warrants represented by the Global Book-Entry Warrant, the
Warrant Agent shall cancel such Definitive Warrant and cause, or
direct the Depositary to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Warrant Agent, the number of Warrants represented by the Global
Book-Entry Warrant to be increased accordingly. If no Global
Book-Entry Warrant is then outstanding, the Company shall issue and
the Warrant Agent shall countersign a new Global Book-Entry Warrant
in the appropriate amount.
2.3.3 Transfer
and Exchange of Global Book-Entry Warrants. The transfer and
exchange of Global Book-Entry Warrants or beneficial interests
therein shall be effected through the Depositary, in accordance
with this Agreement (including the restrictions on transfer set
forth herein) and the procedures of the Depositary
therefor.
2.3.4 Transfer
of a Beneficial Interest in a Global Book-Entry Warrant for a
Definitive Warrant.
(a) Any Person having a
beneficial interest in a Global Book-Entry Warrant may upon written
request exchange such beneficial interest for a Definitive Warrant.
Upon receipt by the Warrant Agent of written instructions or such
other form of instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Global Book-Entry Warrant and upon receipt
by the Warrant Agent of a written order or such other form of
instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest
containing registration instructions, the Warrant Agent will cause,
in accordance with the standing instructions and procedures
existing between the Depositary and the Warrant Agent, the
aggregate amount of the Global Book-Entry Warrant to be reduced
and, following such reduction, the Company will execute and, upon
receipt of a countersignature order in the form of an
Officers’ Certificate, the Warrant Agent will authenticate
and deliver to the transferee a Definitive Warrant.
(b) Warrant
Certificates issued in exchange for a beneficial interest in a
Global Book-Entry Warrant pursuant to this Section 2.3.4(b) shall be
registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Warrant
Agent in writing. The Warrant Agent shall make available such
Warrant Certificates to the Persons in whose names such Warrants
are so registered.
2.3.5 Restrictions
on Transfer and Exchange of Global Book-Entry Warrants.
Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in Section 2.3.6), a Global
Book-Entry Warrant may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
2.3.6 Countersignature
of Warrant Certificates in Absence of Depositary. If at any
time:
(a) the Depositary for
the Warrants notifies the Company that the Depositary is unwilling
or unable to continue as Depositary for the Global Book-Entry
Warrant and a successor Depositary for the Global Book-Entry
Warrant is not appointed by the Company within 80 days after
delivery of such notice; or
(b) the Company, at its
sole discretion, notifies the Warrant Agent in writing that it
elects to cause the issuance of Warrant Certificates in place of
the Global Book-Entry Warrant under this Agreement;
then
the Company will execute, and the Warrant Agent, upon receipt of an
Officers’ Certificate requesting the countersignature and
delivery of Warrant Certificates, will authenticate and deliver
Warrant Certificates, in an aggregate number equal to the aggregate
number of Warrants represented by the Global Book-Entry Warrant, in
exchange for such Global Book-Entry Warrant.
2.3.7 Cancellation
and/or Adjustment of a Global Book-Entry Warrant. At such
time as all beneficial interests in a Global Book-Entry Warrant
have either been exchanged for Warrant Certificates, redeemed,
repurchased or cancelled, such Global Book-Entry Warrant shall be
returned to or retained and cancelled by the Warrant Agent. At any
time prior to such cancellation, if any beneficial interest in a
Global Book-Entry Warrant is exchanged for Warrant Certificates,
redeemed, repurchased or cancelled, the number of Warrants
represented by such Global Book-Entry Warrant shall be reduced and
an endorsement shall be made on such Global Book-Entry Warrant, by
the Warrant Agent to reflect such reduction.
2.3.8 Obligations
with Respect to Transfers and Exchanges of Warrant
Certificates.
(a) To permit
registrations of transfers and exchanges, the Company shall deliver
to the Warrant Agent, upon execution of this Agreement and from
time to time thereafter, sufficient inventory of executed Warrant
Certificates and Global Book-Entry Warrants.
(b) All Warrant
Certificates and Global Book-Entry Warrants issued upon any
registration, transfer or exchange of Warrant Certificates or
Global Book-Entry Warrants shall be the valid obligations of the
Company, entitled to the same benefits under this Agreement as the
Warrant Certificates or Global Book-Entry Warrants surrendered upon
the registration of transfer or exchange.
(c) Prior to due
presentment for registration of transfer of any Warrant, the
Warrant Agent and the Company may deem and treat the Person in
whose name any Warrant is registered as the absolute owner of such
Warrant, and neither the Warrant Agent nor the Company shall be
affected by notice to the contrary.
2.3.9 General.
The Warrant Agent shall be under no duty to monitor compliance with
any federal, state or other securities laws.
3. Exercise
of Warrants
.
Subject to the provisions of the Warrants and this Warrant Agent
Agreement, a Warrant may be exercised by the Registered Holder
thereof by delivering to the office of the Warrant Agent, or at the
office of its successor as Warrant Agent, the Warrant, the notice
of exercise, as set forth in the Warrant, duly executed and
properly completed, and by paying in full, in lawful money of the
United States by wire transfer to the Warrant Agent (or, if
available, pursuant to the cashless exercise feature as set forth
in such Warrant, all cashless exercises should be directed to the
Company for calculation of the applicable number of Warrant Shares
issuable upon such cashless exercise and upon completion of such
calculation by the Company, the Company shall provide the Warrant
Agent with written issuance instructions), the Exercise Price for
each full Warrant Share as to which the Warrant is exercised and
the issuance of the Warrant Shares by the Warrant Agent as set
forth in the applicable Warrant. In no event shall the Registered
Holder of any Warrant be entitled to “net cash settle”
the Warrant. The Warrant Agent will transmit to the Company the
funds received from the Registered Holders for the exercise of the
Warrants by the 5th business day of the month following the
acceptance of such funds. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of
guarantee or notarization) of any Notice of Exercise be required;
provided, however, that in the case of Notice of Exercise that
involves transfer of ownership, (for purposes of clarity, transfer
of ownership shall not include issuance of Warrant Shares to
Registered Holder of the Warrants), or change in the name of the
registered holder, the Warrant Agent may reasonably request such
other documentations to accompany the Notice of Exercise, including
a medallion guarantee from an eligible guarantor institution
participating in a signature guarantee program approved by the
Securities Transfer Association (a “Signature
Guarantee”). If payment in U.S. dollars as provided in this
Section 3 is legally prevented in Argentina, Registered Holders of
Warrants will be entitled to pay the Exercise Price directly to the
Company, in Argentine Pesos in an amount equal to the Argentine
Peso equivalent of the U.S. dollar Exercise Price of the Warrants
determined on the Blue Chip Swap Rate on the business day preceding
the payment date of the Exercise Price of the Warrants. For
purposes of this agreement, “Blue Chip Swap Rate” shall
mean the implied exchange rate between Pesos and U.S. dollars that
results from dividing the closing price of the Company’s
common shares on the Buenos Aires Stock Exchange as of a certain
date by the closing price of the Company’s ADSs on Nasdaq as
of that same date, further divided by ten. The Warrant Agent shall
have no liability or responsibility with respect to the
determination of the exchange rate for the Exercise Price payable
in Argentine Pesos or whether any such amounts have been
paid.
4. Concerning
the Warrant Agent and Other Matters
.
4.1 Payment of Taxes. The Company
will, from time to time, promptly pay all taxes and charges that
may be imposed upon the Company or the Warrant Agent in respect of
the issuance or delivery of Warrant Shares upon the exercise of
Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such shares. The
Warrant Agent shall not have any duty or obligation to take any
action under any section of this Warrant Agent Agreement or any
Warrant Certificate that requires the payment of taxes and/or
charges unless and until it is satisfied that all such payments
have been made.
4.2 Resignation, Consolidation, or Merger
of Warrant Agent.
4.2.1 Appointment
of Successor Warrant Agent. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties, and be
discharged from all further duties and liabilities hereunder after
giving thirty (30) days’ notice in writing to the Company. In
the event any transfer agency relationship in effect between the
Company and the Warrant Agent terminates, the Warrant Agent will be
deemed to have resigned automatically and be discharged from its
duties under this Warrant Agent Agreement as of the effective date
of such termination. If the office of the Warrant Agent becomes
vacant by resignation or incapacity to act or otherwise, the
Company shall appoint, in writing, a successor Warrant Agent in
place of the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified
in writing of such resignation or incapacity by the Warrant Agent
or by the holder of the Warrant (who shall, with such notice,
submit his, her or its Warrant for inspection by the Company), then
the holder of any Warrant may apply to the Supreme Court of the
State of New York for the County of New York for the appointment of
a successor Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be a corporation
or other entity organized and existing under the laws of the State
of New York, in good standing and have its principal office in the
Borough of Manhattan, City and State of New York, and be authorized
under such laws to exercise corporate trust power and subject to
supervision or examination by federal or state authorities. After
appointment, any successor Warrant Agent shall be vested with all
the authority, powers, rights, immunities, duties and obligations
of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed;
but, if for any reason it becomes· necessary or appropriate,
the predecessor Warrant Agent shall execute and deliver, at the
expense of the Company and without assumption of any additional
liability in connection therewith, an instrument transferring to
such successor Warrant Agent all the authority, powers, and rights
of such predecessor Warrant Agent hereunder; and, upon request of
any successor Warrant Agent, the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for
more fully and effectually vesting in and confirming to such
successor Warrant Agent all such authority, powers, rights,
immunities, duties and obligations.
4.2.2 Notice
of Successor Warrant Agent. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to
the predecessor Warrant Agent and the transfer agent for the
Warrant Shares not later than the effective date of any such
appointment.
4.2.3 Merger
or Consolidation of Warrant Agent. Any corporation or other
entity into which the Warrant Agent may be merged or with which it
may be consolidated or any corporation or other entity resulting
from any merger or consolidation to which the Warrant Agent shall
be a party shall be the successor Warrant Agent under this Warrant
Agent Agreement without any further act on the part of the Company
or the Warrant Agent. The purchase of all or substantially all of
the Warrant Agent’s assets employed in the performance of the
corporate trust or transfer agent activities shall be deemed a
merger or consolidation for purposes of this Section
4.2.3.
4.3 Fees and Expenses of Warrant
Agent.
4.3.1 Remuneration.
The Company agrees to pay the Warrant Agent reasonable remuneration
for its services as Warrant Agent hereunder in accordance with a
mutually agreed upon fee schedule and will reimburse the Warrant
Agent upon demand for all of its reasonable and documented expenses
and counsel fees and other disbursements incurred in the
preparation, delivery, negotiation, amendment, administration and
execution of this Warrant Agent Agreement and the exercise and
performance of its duties hereunder.
4.3.2 Further
Assurances. The Company agrees to perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered, all such further and other acts,
instruments and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing of the provisions
of this Warrant Agent Agreement.
4.4 Liability of Warrant
Agent.
4.4.1 Reliance
on Company Statement. Whenever, in the performance of its
duties under this Warrant Agent Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by an
Authorized Signatory, and delivered to the Warrant Agent. The
Warrant Agent may rely upon such statement for any action taken or
suffered by it pursuant to the provisions of this Warrant Agent
Agreement. From time to time, Company may provide Warrant Agent
with instructions concerning the services performed by the Warrant
Agent hereunder. In addition, at any time Warrant Agent may apply
to any officer of Company for instruction, and may consult with
legal counsel for Warrant Agent or Company with respect to any
matter arising in connection with the services to be performed by
the Warrant Agent under this Agreement. Warrant Agent and its
agents and subcontractors shall not be liable and shall be
indemnified by Company for any action taken or omitted by Warrant
Agent in reliance upon any Company instructions or upon the advice
or opinion of such counsel. Warrant Agent shall not be held to have
notice of any change of authority of any person, until receipt of
written notice thereof from Company.
4.4.2 Indemnity.
The Warrant Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith (each as determined by
a court of competent jurisdiction in final and non-appealable
decision). The Company agrees to indemnify the Warrant Agent and
save it harmless against any costs, expenses (including reasonable
fees of its legal counsel), losses or damages, which may be paid,
incurred or suffered by or to which it may become subject, arising
from or out of, directly or indirectly, any claims or liability
resulting from its actions as Warrant Agent pursuant hereto, except
as a result of the Warrant Agent’s gross negligence, willful
misconduct or bad faith (each as determined by a court of competent
jurisdiction in a final and non-appealable decision). The costs and
expenses incurred in enforcing this right of indemnification shall
be paid by the Company.
4.4.3 Exclusions.
The Warrant Agent shall have no responsibility with respect to the
validity of this Warrant Agent Agreement or with respect to the
validity or execution of any Warrant (except its countersignature
thereof). The Warrant Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Warrant
Agency Agreement or in the Warrant (except its countersignature
thereof) or be required to verify the same, and all such statements
and recitals are and shall be deemed to have been made by the
Company only; nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Warrant
Agent Agreement or in any Warrant; nor shall it be responsible to
make any adjustments required under the adjustment provisions
contained in the Warrants or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the existence
of facts that would require any such adjustment; nor shall it, by
any act hereunder, be deemed to make any representation or warranty
as to the authorization or reservation of any Warrant Shares to be
issued pursuant to this Warrant Agent Agreement or any Warrant or
as to whether any Warrant Shares will, when issued, be valid, fully
paid and nonassessable.
4.4.4 Limitation
of Liability. Notwithstanding anything contained herein to
the contrary, the Warrant Agent’s aggregate liability during
any term of this Warrant Agent Agreement with respect to, arising
from, or arising in connection with this Warrant Agent Agreement,
or from all services provided or omitted to be provided under this
Warrant Agent Agreement, whether in contract, or in tort, or
otherwise, is limited to, and shall not exceed, the amounts paid
hereunder by the Company to the Warrant Agent as fees and charges,
but not including reimbursable expenses, during the twelve (12)
months immediately preceding the event for which recovery from
Warrant Agent is being sought. Neither party to this Warrant Agent
Agreement shall be liable to the other party for any consequential,
indirect, special or incidental damages under any provisions of
this Warrant Agent Agreement or for any consequential, indirect,
punitive, special or incidental damages arising out of any act or
failure to act hereunder even if that party has been advised of or
has foreseen the possibility of such damages.
4.5 Rights and Duties of Warrant
Agent.
4.5.1 Counsel.
The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion or advice of such counsel
shall be full and complete authorization and protection to the
Warrant Agent as to any action taken or omitted by it in accordance
with such opinion or advice.
4.5.2 No
Duty of Demand. The Warrant Agent shall not have any duty or
responsibility in the case of the receipt of any written demand
from any holder of Warrants with respect to any action or default
by the Company, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demand
upon the Company.
4.5.3 Freedom
to Trade in Company Securities. Warrant Agent and any
stockholder, director, officer or employee of the Warrant Agent may
buy, sell or deal in any of the Warrants or other securities of the
Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money
to the Company or otherwise act as fully and freely as though it
were not Warrant Agent under this Warrant Agent Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal
entity.
4.5.4 Reliance
on Attorneys and Agents. The Warrant Agent may execute and
exercise any of the rights or powers hereby vested in it or perform
any duty hereunder either itself or by or through its attorney or
agents, and the Warrant Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such
attorney or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, absent gross
negligence, bad faith or willful misconduct (each as determined by
a final non-appealable judgment of a court of competent
jurisdiction) in the selection and continued employment
thereof.
4.5.5 Company
Instructions. The Warrant Agent may rely on and shall be
held harmless and protected and shall incur no liability for or in
respect of any action taken, suffered or omitted to be taken by it
in reliance upon any certificate, statement, instrument, opinion,
notice, letter, facsimile transmission, telegram or other document,
or any security delivered to it, and believed by it to be genuine
and to have been made or signed by the proper party or parties, or
upon any written or oral instructions or statements from the
Company with respect to any matter relating to its acting as
Warrant Agent hereunder.
4.5.6 No
Risk of Own Funds. The Warrant Agent shall not be obligated
to expend or risk its own funds or to take any action that it
believes would expose or subject it to expense or liability or to a
risk of incurring expense or liability, unless it has been
furnished with assurances of repayment or indemnity satisfactory to
it.
4.5.7 Bank
Accounts. All funds received by Computershare under this
Warrant Agent Agreement that are to be distributed or applied by
Computershare in the performance of Services (the
“Funds”) shall be held by Computershare as agent for
the Company and deposited in one or more bank accounts to be
maintained by Computershare in its name as agent for the Company.
Until paid pursuant to the terms of this Warrant Agent Agreement,
Computershare will hold the Funds through such accounts in: deposit
accounts of commercial banks with Tier 1 capital exceeding US$1
billion or with an average rating above investment grade by S&P
(LT Local Issuer Credit Rating), Moody’s (Long Term Rating)
and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as
reported by Bloomberg Finance L.P.). Computershare shall have no
responsibility or liability for any diminution of the Funds that
may result from any deposit made by Computershare in accordance
with this paragraph, including any losses resulting from a default
by any bank, financial institution or other third party.
Computershare may from time to time receive interest, dividends or
other earnings in connection with such deposits. Computershare
shall not be obligated to pay such interest, dividends or earnings
to the Company, any holder or any other part.
4.6 Opinion of Counsel. The Company
shall provide an opinion of counsel reasonably satisfactory to the
Warrant Agent prior to the effective date of this Warrant Agent
Agreement to set up a reserve of Warrants and related Warrant
Shares. The opinion of counsel shall state that all Warrants or
Warrant Shares, as applicable, are: (1) registered under the
Securities Act of 1933, as amended, or are exempt from such
registration; and (2) validly issued, fully paid and
non-assessable.
4.7 Acceptance of Agency. The
Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the express provisions
hereof (and no duties or obligations shall be inferred or implied).
The Warrant Agent shall not assume any obligations or relationship
of agency or trust with any of the owners or holders of the
Warrants.
4.8 Survival. The provisions of
Section 4.3, Section 4.4, Section 4.5 and Section 4.6 shall survive
the expiration of the Warrants, the termination of this Warrant
Agent Agreement and the resignation, replacement or removal of the
Warrant Agent.
5. Adjustment
of Exercise Price and Number of Warrant Shares
Issuable
. If
any corporate restructuring or action regarding the Company’s
Common Stock is approved other than those mentioned in this
Section 5 and which may have an impact on or represent a
reduction of rights to the Holders of the Warrants, the Company
will use its best efforts to negotiate with the Holders of the
Warrants to set forth new exercise conditions, seeking to preserve
the rights originally granted to the Warrants, their economic and
corporate value, the amount of underlying shares and their Exercise
Price. The Company shall promptly prepare a certificate setting
forth such any adjustment in the Exercise Price and a brief,
reasonably detailed statement of the facts and computations
accounting for such adjustment, and promptly file with the Warrant
Agent, a copy of such certificate. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment
therein contained and shall have no duty or liability with respect
to, and shall not be deemed to have knowledge of, such adjustment
unless and until it shall have received such certificate. The
number and kind of shares purchasable upon the exercise of the
Warrants and the Exercise Price shall be subject to adjustment from
time to time as follows:
5.1 Stock Splits, Combinations,
etc. In case the Company shall hereafter (A) pay a
dividend or make a distribution on its Common Stock in shares of
its Capital Stock (whether shares of Common Stock or of Capital
Stock of any other class), (B) subdivide its outstanding
shares of Common Stock or (C) combine its outstanding shares
of Common Stock into a smaller number of shares, then (i) the
number of shares of Capital Stock purchasable upon exercise of each
Warrant immediately after the happening of such event shall be
adjusted so that, after giving effect to such adjustment, the
Holder of any Warrant thereafter exercised shall be entitled to
receive the number of shares of Capital Stock of the Company which
such Holder would have owned immediately following such action had
such Warrant been exercised immediately prior thereto, and
(ii) the Exercise Price in effect immediately prior to such
action, shall be decreased to a price determined by multiplying the
Exercise Price then in effect by a fraction (x) the numerator
of which shall be the number of shares of Common Stock purchasable
upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the
number of shares of Common Stock so purchasable immediately
thereafter. An adjustment made pursuant to this paragraph shall
become effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective
date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this paragraph,
the Holder of any Warrant thereafter exercised shall become
entitled to receive shares of two or more classes of Capital Stock
of the Company, the Board of Directors of the Company (whose
determination shall be conclusive) shall determine the allocation
of the adjusted Exercise Price between or among shares of such
classes of Capital Stock.
5.2 Reclassification, Combinations,
Mergers, etc. In case of any reclassification or change of
outstanding shares of Common Stock issuable upon exercise of the
Warrants (other than as set forth in paragraph (a) above and other
than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or
combination), or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger in
which the Company is the continuing corporation and which does not
result in any reclassification or change of the then outstanding
shares of Common Stock or other Capital Stock issuable upon
exercise of the Warrants (other than a change in par value, or from
par value to no par value, or from no par value to par value or as
a result of a subdivision or combination)) or in case of any sale
or conveyance to another corporation of all or substantially all of
the assets of the Company, then, as a condition of such
reclassification, change, consolidation, merger, sale or
conveyance, the Company or such a successor or purchasing
corporation, as the case may be, shall forthwith make lawful and
adequate provision whereby the Holder of such Warrant then
outstanding shall have the right thereafter to receive on exercise
of such Warrant the kind and amount of shares of stock and other
securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of
the number of shares of Common Stock issuable upon exercise of such
Warrant immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance and enter into a
supplemental warrant agreement so providing. Such provisions shall
include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this Section 5. If the issuer of securities deliverable upon
exercise of Warrants under the supplemental warrant agreement is an
Affiliate of the formed, surviving or transferee corporation, that
issuer shall join in the supplemental warrant agreement. The above
provisions of this paragraph (b) shall similarly apply to
successive reclassifications and changes of shares of Common Stock
and to successive consolidations, mergers, sales or conveyances. In
case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring
corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every
covenant and condition of this Agreement to be performed and
observed by the Company and all the obligations and liabilities
hereunder, subject to such modifications as may be deemed
appropriate (as determined by resolution of the Board of Directors
of the Company) in order to provide for adjustments of shares of
the Common Stock for which a Warrant is exercisable which shall be
as nearly equivalent as practicable to the adjustments provided for
in this Section 5. For purposes of this Section 5.2
“shares of stock and other securities” of a successor
or acquiring corporation shall include stock of such corporation of
any class which is not preferred as to dividends or assets over any
other class of stock of such corporation and which is not subject
to redemption and shall also include any evidences of indebtedness,
shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the
arrival of a specified date or the happening of a specified event
and any Warrants or other rights to subscribe for or purchase any
such stock. The foregoing provisions of this Section 5.2 shall
similarly apply to successive reorganizations, reclassifications,
mergers, consolidations or disposition of assets.
5.3 Issuance of Options or Convertible
Securities. In the event the Company shall, at any time or
from time to time after the date hereof, issue, sell, distribute or
otherwise grant in any manner (including by assumption) to all
holders of the Common Stock any rights to subscribe for or to
purchase, or any warrants or options for the purchase of, Common
Stock or any stock or securities convertible into or exchangeable
for Common Stock (any such rights, warrants or options being herein
called “Options” and any such convertible or
exchangeable stock or securities being herein called
“Convertible Securities”) or any Convertible Securities
(other than upon exercise of any Option), whether or not such
Options or the rights to convert or exchange such Convertible
Securities are immediately exercisable, and the price per share at
which Common Stock is issuable upon the exercise of such Options or
upon the conversion or exchange of such Convertible Securities
(determined by dividing (i) the aggregate amount, if any,
received or receivable by the Company as consideration for the
issuance, sale, distribution or granting of such Options or any
such Convertible Security, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
exercise of all such Options or upon conversion or exchange of all
such Convertible Securities, plus, in the case of Options to
acquire Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the conversion or
exchange of all such Convertible Securities, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise
of all such Options or upon the conversion or exchange of all such
Convertible Securities or upon the conversion or exchange of all
Convertible Securities issuable upon the exercise of all such
Options) shall be less than the Current Market Price per share of
Common Stock (determined pursuant to Section 5.7) on the
record date for the issuance, sale, distribution or granting of
such Options (any such event being herein called
a “Distribution”) then, effective upon such
Distribution, the Exercise Price shall be reduced to the price
(calculated to the nearest 1/1,000 of one cent) determined by
multiplying the Exercise Price in effect immediately prior to such
Distribution by a fraction, the numerator of which shall be the sum
of (i) the number of shares of Common Stock outstanding
(exclusive of any treasury shares) immediately prior to such
Distribution multiplied by the Current Market Price per share of
Common Stock on the date of such Distribution plus (ii) the
consideration, if any, received by the Company upon such
Distribution, and the denominator of which shall be the product of
(A) the total number of shares of Common Stock outstanding
(exclusive of any treasury shares) immediately after such
Distribution multiplied by (B) the Current Market Price per
share of Common Stock on the record date for such Distribution. For
purposes of the foregoing, the total maximum number of shares of
Common Stock issuable upon exercise of all such Options or upon
conversion or exchange of all such Convertible Securities or upon
the conversion or exchange of the total maximum amount of the
Convertible Securities issuable upon the exercise of all such
Options shall be deemed to have been issued as of the date of such
Distribution and thereafter shall be deemed to be outstanding and
the Company shall be deemed to have received as consideration
therefor such price per share, determined as provided above. Except
as provided in paragraphs (k) and (l) below, no additional
adjustment of the Exercise Price shall be made upon the actual
exercise of such Options or upon conversion or exchange of the
Convertible Securities or upon the conversion or exchange of the
Convertible Securities issuable upon the exercise of such
Options.
5.4 Dividends and Distributions. In
the event the Company shall, at any time or from time to time after
the date hereof, distribute to all the holders of Common Stock any
dividend as provided for under section 234 of the Argentine
Corporation Law, in cash or other distribution of cash, evidences
of its indebtedness, other securities or other properties or assets
(in each case other than (i) dividends payable in Common
Stock, Options or Convertible Securities and (ii) any cash
dividend from current or retained earnings), or any options,
warrants or other rights to subscribe for or purchase any of the
foregoing, that exceeds 3% of the Current Market Price (as defined
in Section 5.7), then (A) the Exercise Price shall be
decreased to a price determined by multiplying the Exercise Price
then in effect by a fraction, the numerator of which shall be the
Current Market Price per share of Common Stock on the record date
for such distribution less the sum of (X) the cash portion, if
any, of such distribution per share of Common Stock outstanding
(exclusive of any treasury shares) on the record date for such
distribution plus (Y) the then fair market value (as
determined in good faith by the Board of Directors of the Company)
per share of Common Stock outstanding (exclusive of any treasury
shares) on the record date for such distribution of that portion,
if any, of such distribution consisting of evidences of
indebtedness, other securities, properties, assets, options,
warrants or subscription or purchase rights, and the denominator of
which shall be such Current Market Price per share of Common Stock
and (B) the number of shares of Common Stock purchasable upon
the exercise of each Warrant shall be increased to a number
determined by multiplying the number of shares of Common Stock so
purchasable immediately prior to the record date for such
distribution by a fraction, the numerator of which shall be the
Exercise Price in effect immediately prior to the adjustment
required by clause (A) of this sentence and the denominator of
which shall be the Exercise Price in effect immediately after such
adjustment. The adjustments required by this paragraph shall be
made whenever any such distribution occurs retroactive to the
record date for the determination of stockholders entitled to
receive such distribution.
5.5 Self-Tenders. In case of the
consummation of a tender or exchange offer (other than an odd-lot
tender offer) made by the Company or any subsidiary of the Company
for all or any portion of the Common Stock to the extent that the
cash and value of any other consideration included in such payment
per share of Common Stock exceeds the first reported sales price
per share of Common Stock on the trading day next succeeding the
Expiration Time, the Exercise Price shall be reduced so that the
same shall equal the price determined by multiplying the Exercise
Price in effect immediately prior to the Expiration Time by a
fraction the numerator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the first reported
sales price of the Common Stock on the trading day next succeeding
the Expiration Time, and the denominator shall be the sum of
(A) the fair market value (determined by the Board of
Directors of the Company, whose determination shall be conclusive
and described in a resolution of the Board of Directors) of the
aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as
the “Purchased Shares”) and (B) the product
of the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time and the first reported
sales price of the Common Stock on the trading day next succeeding
the Expiration Time, such reduction to become effective immediately
prior to the opening of business on the day following the
Expiration Time.
5.6 Issuance of Additional Shares of
Common Stock. If at any time the Company shall (except as
hereinafter provided) issue or sell any additional shares of Common
Stock for consideration in an amount per additional share of Common
Stock less than the Current Market Price, then the number of shares
of Common Stock for which a Warrant is exercisable shall be
adjusted to equal the product obtained by multiplying the number of
shares of Common Stock for which a Warrant is exercisable
immediately prior to such issue or sale by a fraction (A) the
numerator of which shall be the number of shares of Common Stock
outstanding immediately after such issue or sale, and (B) the
denominator of which shall be the sum of (1) the number of
shares of Common Stock outstanding immediately prior to such issue
or sale, and (2) the aggregate consideration received from the
issuance or sale of the additional shares of Common Stock divided
by the Current Market Price. For the purposes of this paragraph
(f), the date as of which the Current Market Price per share of
Common Stock shall be computed shall be the earlier of (a) the
date on which the Company shall enter into a firm contract for the
issuance of such additional shares of Common Stock or (b) the
date of actual issuance of such additional shares of Common Stock.
Notwithstanding the foregoing, no adjustment shall be made under
this paragraph for issuances of shares of Common Stock
(i) with respect to options issued under the Company’s
stock options plans as currently in effect or (ii) upon
exercise of the Warrants.
5.7 Current Market Price. For the
purpose of any computation of Current Market Price under this
Section 5, the Current Market Price per share of Common Stock
at any date shall be the average of the daily closing prices for
the shorter of (i) the 20 consecutive trading days ending on
the last full trading day on the exchange or market specified in
the second succeeding sentence prior to the Time of Determination
(as defined below) and (ii) the period commencing on the date
next succeeding the first public announcement of the issuance,
sale, distribution or granting in question through such last full
trading day prior to the Time of Determination; provided that in
the case of a firm commitment underwritten public offering, the
Current Market Price shall mean the closing price of the Common
Stock on the day of the pricing of such offering. The term
“Time of Determination” as used herein shall be the
time and date of the earlier to occur of (A) the date as of
which the Current Market Price is to be computed and (B) the
last full trading day on such exchange or market before the
commencement of “ex-dividend” trading in the Common
Stock relating to the event giving rise to the adjustment required
by paragraph 5.1, 5.2, 5.3 or 5.4. The closing price for any day
shall be the last reported sale price regular way or, in case no
such reported sale takes place on such day, the average of the
closing bid and asked prices regular way for such day, in each case
(1) on the Buenos Aires Stock Exchange (Bolsa de Comercio) or
(2) if the Common Stock is not listed on the Buenos Aires
Stock Exchange (Bolsa de Comercio) or a comparable system, selected
from time to time in good faith by the Board of Directors of the
Company for that purpose. In the absence of all of the foregoing,
or if for any other reason the Current Market Price per share
cannot be determined pursuant to the foregoing provisions of this
paragraph (g), the Current Market Price per share shall be the fair
market value thereof as determined in good faith by the Board of
Directors of the Company.
5.8 Certain Distributions. If the
Company shall pay a dividend or make any other distribution payable
in Options or Convertible Securities, then, for purposes of
paragraph (c) above, such Options or Convertible Securities shall
be deemed to have been issued or sold without
consideration.
5.9 Consideration Received. If any
shares of Common Stock, Options or Convertible Securities shall be
issued, sold or distributed for a consideration other than cash,
the amount of the consideration other than cash received by the
Company in respect thereof shall be deemed to be the then fair
market value of such consideration (as determined in good faith by
the Board of Directors of the Company). If any Options shall be
issued in connection with the issuance and sale of other securities
of the Company, together comprising one integral transaction in
which no specific consideration is allocated to such Options by the
parties thereto, such Options shall be deemed to have been issued
without consideration; provided, however, that if such Options have
an exercise price equal to or greater than the Current Market Price
of the Common Stock on the date of issuance of such Options, then
such Options shall be deemed to have been issued for consideration
equal to such exercise price.
5.10 Deferral
of Certain Adjustments. No adjustment to the Exercise Price
(including the related adjustment to the number of shares of Common
Stock purchasable upon the exercise of each Warrant) shall be
required hereunder unless such adjustment, together with other
adjustments carried forward as provided below, would result in an
increase or decrease of at least two percent (2%) of the
Exercise Price; provided that any adjustments which by reason of
this paragraph (j) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. No
adjustment need be made for a change in the par value of the Common
Stock. All calculations under this Section shall be made to the
nearest 1/1,000 of one cent or to the nearest 1/1000th of a share,
as the case may be.
5.11 Changes
in Options and Convertible Securities. If the exercise price
provided for in any Options referred to in paragraph (c) above, the
additional consideration, if any, payable upon the conversion or
exchange of any Convertible Securities referred to in paragraph (c)
above, or the rate at which any Convertible Securities referred to
in paragraph (c) above are convertible into or exchangeable for
Common Stock shall change at any time (other than under or by
reason of provisions designed to protect against dilution upon an
event which results in a related adjustment pursuant to this
Section 7), the Exercise Price then in effect and the number
of shares of Common Stock purchasable upon the exercise of each
Warrant shall forthwith be readjusted (effective only with respect
to any exercise of any Warrant after such readjustment) to the
Exercise Price and number of shares of Common Stock so purchasable
that would then be in effect had the adjustment made upon the
issuance, sale, distribution or granting of such Options or
Convertible Securities been made based upon such changed purchase
price, additional consideration or conversion rate, as the case may
be, but only with respect to such Options and Convertible
Securities as then remain outstanding.
5.12 Expiration
of Options and Convertible Securities. If, at any time after
any adjustment to the number of shares of Common Stock purchasable
upon the exercise of each Warrant shall have been made pursuant to
paragraph 5.3 or 5.11 above or this paragraph 5.12, any Options or
Convertible Securities shall have expired unexercised, the number
of such shares so purchasable shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had
they been originally adjusted (or had the original adjustment not
been required, as the case may be) as if (i) the only shares
of Common Stock deemed to have been issued in connection with such
Options or Convertible Securities were the shares of Common Stock,
if any, actually issued or sold upon the exercise of such Options
or Convertible Securities and (ii) such shares of Common
Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale, distribution or granting of all such Options or
Convertible Securities, whether or not exercised; provided that no
such readjustment shall have the effect of decreasing the number of
such shares so purchasable by an amount (calculated by adjusting
such decrease to account for all other adjustments made pursuant to
this Section 5 following the date of the original adjustment
referred to above) in excess of the amount of the adjustment
initially made in respect of the issuance, sale, distribution or
granting of such Options or Convertible Securities.
5.13 Other
Adjustments. In the event that at any time, as a result of
an adjustment made pursuant to this Section 5, the Holders
shall become entitled to receive any securities of the Company
other than shares of Common Stock, thereafter the number of such
other securities so receivable upon exercise of the Warrants and
the Exercise Price applicable to such exercise shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
shares of Common Stock contained in this
Section 5.
5.14 Other
Action Affecting Common Stock. In case at any time or from
time to time the Company shall take any action in respect of its
Common Stock, other than any action described in this
Section 5, then the number of shares of Common Stock or other
stock for which a Warrant is exercisable and/or the Exercise Price
shall be adjusted in such manner as may be equitable in the
circumstances. If the Company shall at any time and from time to
time issue or sell (i) any shares of any class of common stock
other than Common Stock, (ii) any evidences of its
indebtedness, shares of stock or other securities which are
convertible into or exchangeable for such shares of common stock,
with or without the payment of additional consideration in cash or
property or (iii) any Warrants or other rights to subscribe
for or purchase any such shares of common stock or any such
evidences, shares of stock or other securities, then in each such
case such issuance shall be deemed to be of, or in respect of,
Common Stock for purposes of this Section 5; provided,
however, that, without limiting the generality of the foregoing, if
the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend payable in,
or other distribution of, common stock other than Common Stock,
including shares of non-voting common stock, then the number of
shares of Common Stock for which a Warrant is exercisable
immediately after the occurrence of any such event shall be
adjusted to equal the aggregate number of shares of such common
stock and of Common Stock which a record holder of the same number
of shares of Common Stock for which a Warrant is exercisable
immediately prior to the occurrence of such event would own or be
entitled to receive after the happening of such event.
6. Notices
of Changes in Warrant
. Upon
every adjustment of the exercise price of a Warrant or the number
of shares issuable upon exercise of a Warrant, the Company shall
give written notice thereof to the Warrant Agent, which notice
shall state the Warrant exercise price resulting from such
adjustment and the increase or decrease, if any, in the number of
shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based. The Warrant Agent
shall be fully protected in relying upon such a notice and on any
adjustment therein contained and shall not have any duty or
liability with respect thereto and shall not be deemed to have
knowledge of any such adjustment unless and until it shall have
received such certificate.
7. Reservation
of Warrant Shares
. The
Company shall at all times reserve and keep available a number of
its authorized but unissued Warrant Shares that will be sufficient
to permit the exercise in full of all outstanding Warrants issued
pursuant to this Warrant Agent Agreement.
8. Warrant
Shares Registration Statement
. The
Company agrees with and for the benefit of the Holders of Warrants
that for a period of four years commencing on the first anniversary
of the date of issuance of the Warrants, the Company will have
registered (the “Warrant Shares Registration
Statement”) or otherwise qualified all Warrant Shares
pursuant to the provisions of the Securities Act, and the Company
will file such amendments and/or supplements to any registration
statement under the Securities Act covering the issuance of such
Warrant Shares, and supplement and keep current any prospectus
forming a part of such registration statement, as may be necessary
to permit the Company to comply with the Securities Act and the
rules and regulations thereunder, and to permit the Company to
deliver to each Person exercising a Warrant a prospectus meeting
the requirements of Section 10(a)(3) of the Securities Act and
otherwise comply therewith; and the Company will deliver such
prospectus to each such Person. During such four-year period, the
Company shall, upon the request of any Holder of Warrants that may
be required pursuant to the Securities Act to deliver a prospectus
in connection with any sale or other disposition of Warrant Shares,
include within the plan of distribution section of the prospectus
and in such other places in the prospectus as may be necessary, all
information necessary under the Securities Act to enable such
Holder to deliver such prospectus in connection with sales or other
dispositions of such Warrant Shares, and the Company shall also
take such action as may be necessary under the Securities Act with
respect to the related registration statement to enable such Holder
to effect such delivery in connection with such sale or other
disposition. The Company further agrees to provide any Holder who
during such period may be required to deliver a prospectus upon the
sale or other disposition of such Warrant Shares, such number of
copies of the prospectus as such Holder reasonably
requests.
8.1 Registration Expenses. All
expenses incident to the Company’s performance of or
compliance with this Section 18 will be borne by the Company,
including without limitation: (i) all registration and filing
fees and expenses; (ii) all fees and expenses of compliance
with federal securities laws; (iii) all expenses of printing
(including printing certificates for the Warrant Shares and
printing of prospectuses), messenger and delivery services;
(iv) all fees and disbursements of counsel for the Company;
(v) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance); and (vi) the Company’s internal expenses,
the expenses of any annual or other audit and the fees and expenses
of any Person, including special experts, retained by the
Company.
9. Miscellaneous
Provisions
.
9.1 Loss. Theft. Destruction or Mutilation
of Warrant. Upon receipt by the Company and the Warrant
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of the Warrants or any stock
certificate relating to shares underlying the Warrants, and in case
of loss theft or destruction, of indemnity or security reasonably
satisfactory to them (including, posting a bond), and reimbursement
to the Company and the Warrant Agent of all reasonable expenses
incidental thereto. Upon surrender and cancellation of such Warrant
or stock certificate, if mutilated, the Warrant Agent will deliver
a new Warrant or stock certificate of like tenor and dated as of
such cancellation, in lieu of such Warrant or stock
certificate.
9.2 Successors. All the covenants
and provisions of this Warrant Agent Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to
the benefit of their respective successors and
assigns.
9.3 Notices. Any notice, statement
or demand authorized by this Warrant Agent Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on
the Company shall be in writing and shall be delivered by hand or
sent by registered or certified mail or overnight courier service,
addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:
Name:
Matias Gaivironsky / Leonardo Magliocco
Address: Carlos M.
Della Paolera 261, 9th floor, City of
Buenos Aires, Argentina
Phone
+54 11 4323 7440
Fax
-
Email
mgaivironsky@IRSA.com.ar
/ lmagliocco@IRSA.com.ar
With a
copy (for informational purposes only) to:
Simpson
Thacher & Bartlett LLP
425
Lexington Ave
New
York, NY 10017
Attn:
Jaime Mercado
Phone:
212-455-2000
Fax:
212-455-2502
Email:
jmercado@stblaw.com
Any
notice) statement or demand authorized by this Warrant Agent
Agreement to be given or made by the holder of any Warrant or by
the Company to or on the Warrant Agent shall be in writing and
shall be delivered by hand or sent by registered or certified mail
or overnight courier service, addressed (until another address is
filed in writing by the Warrant Agent with the Company), as
follows:
Computershare Trust
Company, N.A.
250
Royall Street
Canton,
MA 02021
Attention:
Client Services
Any
notice, statement or demand authorized to be given or made by the
Warrant Agent or the Company to the holder of any Warrant shall be
in writing and shall be delivered by hand or sent by first-class
mail, postage prepaid or registered or certified mail or overnight
courier service, addressed, at the last address set forth for such
holder in the Warrant Register.
Any
notice, sent pursuant to this Warrant Agent Agreement shall be
effective, if delivered by hand, upon receipt thereof by the party
to whom it is addressed, if sent by overnight courier, on the next
business day of the delivery to the courier, if sent by registered
or certified mail on the third business day after registration or
certification thereof, and if sent by first class mail on the fifth
business day after mailing.
9.4 Applicable Law. The validity,
interpretation, and performance of this Warrant Agent Agreement and
of the Warrants shall be governed in all respects by the laws of
the State of New York, without giving effect to conflict of laws.
The Company hereby agrees that any action, proceeding or claim
against it arising out of or relating in any way to this Warrant
Agent Agreement shall be brought and enforced in the courts of the
State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company
hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. Any such process or
summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set
forth in Section 7.3 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any
action, proceeding or claim.
9.5 Examination of the Warrant Agent
Agreement. A copy of this Warrant Agent Agreement shall be
available at all reasonable times at the office of the Warrant
Agent for inspection by the Registered Holder of any Warrant. The
Warrant Agent may require any such holder to submit his, her or its
Warrant for inspection.
9.6 Counterparts; Signatures. This
Warrant Agent Agreement may be executed in any number of
counterparts, and each of such counterparts shall, for all
purposes, be deemed to be an original, and all such counterparts
shall together constitute one and the same instrument. Facsimile
signatures (or .pdf copy
via e-mail attachment) shall constitute original signatures for all
purposes of this Warrant Agent Agreement.
9.7 Effect of Headings. The section
headings herein are for convenience only and are not part of this
Warrant Agent Agreement and shall not affect the interpretation
thereof
9.8 Amendments. The Company and the
Warrant Agent may amend this Warrant Agent Agreement by executing a
Supplemental Agreement with the consent of the Holders of not fewer
than a majority of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Warrant
Agent Agreement; provided however, that, without the consent of
each of Registered Holders affected thereby, no such amendment may
be made that changes the Warrants. Upon the delivery of a
certificate from an Authorized Signatory which states that the
proposed amendment is in compliance with the terms of this Section
7.8, the Warrant Agent shall execute such amendment.
Notwithstanding anything in this Warrant Agent Agreement to the
contrary, the Warrant Agent shall not be required to execute any
amendment to this Warrant Agent Agreement that it has determined
would adversely affect its own rights, duties, obligations or
immunities under this Warrant Agent Agreement. No amendment to this
Warrant Agent Agreement shall be effective unless duly executed by
the Warrant Agent.
9.9 Severability. This Warrant
Agent Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Warrant Agent Agreement or
of any other term or provision hereof. Furthermore, in lieu of any
such invalid or unenforceable term or provision, the parties hereto
shall use their reasonable best efforts to substitute a valid,
legal and enforceable provision, which, insofar as practicable,
implements the original purposes and intents of this Warrant Agent
Agreement; provided, however, that if any excluded provision shall
affect the rights, immunities, liabilities, duties or obligations
of the Warrant Agent, the Warrant Agent shall be entitled to resign
immediately upon written notice to the Company.
9.10 Persons
Having Rights under this Warrant Agent Agreement. Nothing in
this Warrant Agent Agreement expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation
other than the parties hereto and the Registered Holders any right,
remedy, or claim under or by reason of this Warrant Agent Agreement
or of any covenant, condition, stipulation, promise, or agreement
hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Warrant Agent Agreement shall be for
the sole and exclusive benefit of the parties hereto and their
successors and assigns and of the Registered Holder.
9.11 Force
Majeure. Notwithstanding anything to the contrary contained
herein, the Warrant Agent shall not be liable for any delays or
failures in performance resulting from acts beyond its reasonable
control including, without limitation, acts of God, terrorist acts,
shortage of supply, breakdowns or malfunctions, interruptions or
malfunctions of any utilities, communications, or computer
facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor
difficulties, epidemics, pandemics, war or civil unrest. This
provision has no effect on the Company’s liability for the
performance of its obligations under the Warrants.
IN
WITNESS WHEREOF, this Warrant Agent Agreement has been duly
executed by the parties hereto as of the day and year first above
written.
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IRSA
Inversiones y Representaciones Sociedad Anónima
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Computershare
Inc. and Computershare Trust Company, N.A.
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By:
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Name:
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Title:
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By:
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EXHIBIT A
Form of Warrant
THESE
WARRANTS HAVE BEEN OFFERED AS PART OF A COMMON SHARE RIGHTS AND ADS
RIGHTS OFFERING. EACH COMMON SHARE RIGHT ENTITLED ITS HOLDER TO
SUBSCRIBE FOR 0.1794105273 NEW SHARES OF COMMON STOCK AND TO
RECEIVE FREE OF CHARGE FOR EACH NEW COMMON SHARE THAT IT PURCHASED
PURSUANT TO SUCH OFFER, ONE WARRANT TO PURCHASE ONE ADDITIONAL
SHARES OF COMMON STOCK OF IRSA INVERSIONES Y REPRESENTACIONES
SOCIEDAD ANÓNIMA (THE “COMPANY”). EACH ADS RIGHT
ENTITLED ITS HOLDER TO SUBSCRIBE FOR 0.1794105273 NEW ADSs AND TO
RECEIVE FREE OF CHARGE FOR EACH NEW ADS THAT IT PURCHASED PURSUANT
TO SUCH OFFER, TEN WARRANTS, EACH OF WHICH ENTITLED SUCH HOLDER TO
PURCHASE ONE ADDITIONAL SHARES OF COMMON STOCK OF THE COMPANY. EACH
WARRANT IS INITIALLY EXERCISABLE TO PURCHASE SHARES OF COMMON STOCK
OF THE COMPANY AT AN EXERCISE PRICE OF US$ [●] PER SHARE. THE
WARRANTS ARE FREELY TRANSFERABLE AND WILL TRADE ON THE BUENOS AIRES
STOCK EXCHANGE.
Unless
and until it is exchanged in whole or in part for Warrants in
certificated form, this Warrant may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation (“DTC”), to the Company or
its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity
as is requested by an authorized representative of DTC), any
transfer, pledge or other use hereof for value or otherwise by or
to any person is wrongful inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
CUSIP
No.
No. 1 Warrants
Exh. A-1
Warrant
Certificate
IRSA
INVERSIONES Y REPRESENTACIONES SOCIEDAD ANONIMA
This
Warrant Certificate certifies that [Cede & Co.], or registered
assigns, is the registered holder of
[ ] warrants
expiring [ ] (the “Warrants”) to purchase
shares of Common Stock (the “Common Stock”) of IRSA
Inversiones y Representaciones Sociedad Anónima, an Argentine
corporation (the “Company”).
Each
Warrant entitles the registered holder, upon exercise during the
period from and including [ ] (to the extent
such dates are business days in New York City and in the City of
Buenos Aires), and expiring on 5:00 p.m., New York City time
on [ ], for such Warrant, to purchase from
the Company (and the Company shall issue and sell to such holder of
the Warrant) [ ] shares of Common Stock,
subject to the conditions set forth herein and in the Warrant
Agreement referred to on the reverse hereof. The Exercise Price and
number of Warrant Shares issuable upon exercise of the Warrants are
subject to adjustment upon the occurrence of certain events as set
forth in the Warrant Agreement. The Warrants are freely
transferable and will trade on the Buenos Aires Stock
Exchange.
The
Warrants will automatically expire on 5:00 p.m., New York City
time on [ ].
Reference is hereby
made to the further provisions of this Warrant Certificate set
forth on the reverse hereof and such further provisions shall for
all purposes have the same effect as though fully set forth at this
place.
This
Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant
Agreement.
This
Warrant Certificate shall be governed and construed in accordance
with the internal laws of the State of New York.
Exh. A-[Insert
Page Number]
IN
WITNESS WHEREOF, IRSA Inversiones y Representaciones Sociedad
Anónima has caused this Warrant Certificate to be signed by
its Chief Administrative Officer and by an Attorney in
Fact.
Dated:
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IRSA
INVERSIONES Y REPRESENTACIONES SOCIEDAD ANÓNIMA
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By:
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Name:
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Countersigned:
COMPUTERSHARE,
INC.,COMPUTERSHARE TRUST COMPANY, N.A.as Warrant Agent
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By:
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Authorized
Signature
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Exh. A-[Insert
Page Number]
[Form of
Warrant Certificate]
[Reverse]
The
Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring [ ]
(or such earlier date as specified in the Warrant Agreement)
entitling the Holder on exercise to receive shares of Common Stock
of the Company (the “Common Stock”), and are
issued or to be issued pursuant to a Warrant Agreement dated as of
[ ] (the “Warrant Agreement”), duly
executed and delivered by the Company to [Computershare, Inc.], as
warrant agent (the “Warrant Agent”), which
Warrant Agreement is hereby incorporated by reference in and made a
part of this instrument and is hereby referred to for a description
of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the
holders (the words “holders” or
“holder” meaning the
registered holders or registered holder) of the Warrants. A copy of
the Warrant Agreement may be obtained by the Holder hereof upon
written request to the Company. Capitalized terms used but not
otherwise defined herein shall have the meaning set forth in the
Warrant Agreement.
The
Holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the
form of election to purchase set forth hereon properly completed
and executed, together with payment of the Exercise Price in cash
at the office of the Warrant Agent on or before 5:00 p.m., New
York City time, on the relevant exercise date. In the event that
upon any exercise of Warrants evidenced hereby the number of
Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the Holder hereof or his
assignee a new Warrant Certificate evidencing the number of
Warrants not exercised. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of this
Warrant.
The
Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof and/or the
number of shares of Common Stock issuable upon the exercise of each
Warrant shall, subject to certain conditions, be adjusted. No
fractions of a share of Common Stock will be issued upon the
exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant
Agreement.
The
Warrant Agreement provides certain registration obligations of the
Company with respect to the Common Stock issuable upon exercise of
the Warrants.
Warrant
Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in Person or by legal
representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in
the Warrant Agreement, but without payment of any service charge,
for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of
Warrants.
Upon
due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in
the aggregate a like number of Warrants shall be issued to the
transferee(s) in exchange for this Warrant Certificate, subject to
the limitations provided in the Warrant Agreement, without charge
except for any tax or other governmental charge imposed in
connection therewith.
The
Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone), for the purpose of any exercise
hereof, of any distribution to the holder(s) hereof, and for all
other purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary. Neither the Warrants nor
this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
THE
WARRANTS MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD,
ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH THE
WARRANT AGREEMENT. THE WARRANTS WILL NOT BE TRANSFERRED OF RECORD
EXCEPT IN COMPLIANCE WITH SUCH WARRANT AGREEMENT.
Exh. A-[Insert
Page Number]
(FORM
OF ELECTION TO EXERCISE)
(To be
executed upon exercise of Warrants during the Exercisability
Period)
The
undersigned hereby irrevocably elects to exercise _______ of the
Warrants represented by this Warrant Certificate and purchase the
whole number of Warrant Shares issuable upon the exercise of such
Warrants and herewith tenders payment for such Warrant Shares in
the amount of $________ in cash or by certified or official bank
check, in accordance with the terms hereof.
The
undersigned certifies that the Warrants elected to be exercised
hereby are duly exercisable at this time in accordance with the
terms of the Warrant Agreement pursuant to which they have been
issued.
The
undersigned requests that a certificate representing such Warrant
Shares be registered in the name of ________________________ whose
address is ____________________________ and that such certificate
be delivered to _____________________ whose address is
____________________________.
Dated
Name of holder of
Warrant
Certificate:
(Please
Print)
Tax Identification
or Social Security
Number:
Address:
Signature:
Note:
The above signature
must correspond with the name as written upon the face of this
Warrant Certificate in every particular, without alteration or
enlargement or any change whatever and if the certificate
representing the Warrant Shares or any Warrant Certificate
representing Warrants not exercised is to be registered in a name
other than that in which this Warrant Certificate is registered, or
if any cash payment to be paid in lieu of a fractional share is to
be made to a Person other than the registered holder of this
Warrant Certificate, the signature of the holder hereof must be
guaranteed as provided in the Warrant Agreement.
Dated
Signature
Guaranteed:
Exh. A-[Insert
Page Number]
[FORM
OF ASSIGNMENT]
For
value received ______________ hereby sells, assigns and transfers
unto _________________ the within Warrant Certificate, together
with all right, title and interest therein, and does hereby
irrevocably constitute and appoint ___________________ attorney, to
transfer said Warrant Certificate on the books of the within-named
Company, with full power of substitution in the
premises.
Dated
Signature:
Note:
The above signature
must correspond with the name as written upon the face of this
Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
Signature
Guaranteed:
Exh. A-[Insert
Page Number]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL WARRANTS
The
following increases or decreases in this Global Book-Entry Warrant
have been made:
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Date of Transfer or Exchange
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Amount of decrease in Number of Warrants of this Global Book-Entry
Warrant
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Amount of increase in Number of Warrants of this Global Book-Entry
Warrant
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Number of Warrants of this Global Book-Entry Warrant following such
decrease or increase
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Signature of authorized officer of Warrant Agent
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Exh. A-[Insert
Page Number]
Exhibit B
CERTIFICATE
TO BE DELIVERED UPON EXCHANGE
OR
REGISTRATION OF TRANSFER OF WARRANTS
Re:
Warrants to Purchase Common Stock (the “Warrants”) of IRSA
Inversiones y Representaciones Sociedad Anónima
This
Certificate relates to _______ Warrants held in* _______ book-entry
or* _______ certificated form by _______________________
(the “Transferor”).
The
Transferor:*
has
requested the Warrant Agent by written order to deliver in exchange
for its beneficial interest in the Global Book-Entry Warrant held
by the Depositary a Warrant or Warrants in definitive, registered
form of authorized denominations and an aggregate number equal to
its beneficial interest in such Global Book-Entry Warrant (or the
portion thereof indicated above); or
has
requested the Warrant Agent by written order to exchange or
register the transfer of a Warrant or Warrants.
In
connection with such request and in respect of each such Warrant,
the Transferor does hereby certify that Transferor is familiar with
the Warrant Agreement relating to the above captioned Warrants and
the restrictions on transfers thereof as provided in
Section 2.8 of such Warrant Agreement.
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(INSERT
NAME OF TRANSFEROR)
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By:
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April 13,
2021
IRSA Inversiones y Representaciones Sociedad
Anónima
Carlos Della Paolera 261, Piso 9 º
Argentina
Ladies and Gentlemen:
We have acted as local Argentine counsel to IRSA Inversiones y
Representaciones Sociedad Anónima (the “Company”),
a sociedad
anónima organized
under the laws of the Republic of Argentina in connection with the
Registration Statement on Form F-3 (the “Registration
Statement”) filed by the Company with the Securities and
Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended, relating to the offering by the
Company of rights (the “Rights”) to subscribe for an
aggregate of 80,000,000 new common shares, par value Ps.1.00 per
share, (the “New Shares”) including common shares in
the form of Global Depositary Shares and warrants to purchase an
additional 80,000,000 common shares (the “Warrants”).
The Rights arise under the Company’s bylaws and Argentine
law. The Warrants will be issued under a warrant agreement (the
“Warrant Agreement”) among the Company, Computershare
Inc(the “Warrant Agent”) and BACS Banco de Crédito
y Securitización S.A.(the “Argentine
Representative”).
We have examined the Registration Statement and
the exhibits filed with the Commission as of the date hereof. We
have also examined a copy of (i) the bylaws
(estatutos
sociales) of the Company;
(ii) the resolutions of the Company’s shareholders dated
October 30, 2019, and the resolution of the Company’s
Board of Directors dated January 20, 2021. We have further
examined the originals, or duplicates or certified or conformed
copies, of such corporate and other records, agreements, documents
and other instruments and have made such other investigations as we
have deemed relevant and necessary in connection with the opinion
hereinafter set forth. As to questions of fact material to this
opinion, we have relied upon certificates or comparable documents
of public officials and of officers and representatives of the
Company.
In
rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies and
the authenticity of the originals of such latter documents. We have
assumed that at the time of execution, countersignature, issuance
and delivery of any Warrants, the related Warrant Agreement will be
the valid and legally binding obligation of the Warrant Agent and
the Argentine Representative.
We
express no opinion as to any laws other than the laws of the
Republic of Argentina as in effect at the date hereof. This opinion
speaks as of its date, and we disclaim any obligation to advise you
of facts, circumstances, events or developments which may
thereafter be brought to our attention and which may alter, affect
or modify the opinions expressed herein.
Based
upon and subject to the foregoing, and subject to the further
assumptions, qualifications and limitations herein contained, we
are of the opinion that:
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(i)
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Each of
the Company and its subsidiaries have been duly incorporated and
validly exist as a sociedad
anónima under the laws of Argentina, and has all
power and authority to conduct its respective businesses and to own
or hold its respective properties as described in the Registration
Statement.
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(ii)
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All of
the issued shares of capital stock of the Company and its
subsidiaries have been duly and validly authorized and are validly
issued and outstanding, fully paid and nonassessable.
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(iii)
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The
Rights constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their
terms.
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(iv)
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With
respect to the New Shares, when issued and delivered upon exercise
of the Rights in accordance with the Registration Statement, will
be validly issued, fully paid and nonassessable.
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(v)
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With
respect to the Warrants, the Warrant Agreement has been duly
authorized and upon execution and delivery in the form filed as an
exhibit to the Registration Statement, the Warrant Agreement and
the Warrants (i) will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and (ii) will not breach or violate any
agreement or instrument known to us and governed by Argentine law
that is binding on the Company.
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(vi)
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The
common shares underlying the Warrants have been duly authorized and
reserved for issuance, and when issued and delivered upon exercise
of the Warrants in accordance with the Registration Statement, will
be validly issued, fully paid and nonassessable.
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The
above opinions are subject to the following limitations,
qualifications and exceptions:
(1)
nothing herein is to be taken as an indication that the remedy of
an order for specific performance or the issue of an injunction
would be available in a court in Argentina, in that such remedies
are available only at the discretion of such courts;
(2)
the ability of the Company to make payments in respect of the New
Shares in non-Argentine currency (and the ability of any person to
remit out of Argentina the proceeds of any judgment award in
non-Argentine currency issued by a court in Argentina) will be
subject to any exchange control regulations which may be in effect
at the time of payment (or such remittance). We hereby advise you
that there are exchange control restrictions in place as of the
date hereof (which are currently described in the prospectus (the
“Prospectus”)) that limit or otherwise affect any such
payments or remittance;
(3)
there is doubt as to whether Argentine courts would enforce in all
respects and in a timely manner against the Company, or any of its
directors or officers, judgments obtained in the United States
court predicated solely upon the civil liability provisions of the
federal securities laws of the United States or enforce liabilities
against the Company or such persons in original actions brought in
Argentine courts predicated solely upon the federal securities laws
of the United States;
(4)
in order to make the Registration Statement admissible in evidence
in the courts of Argentina, a legalized translation of such
Agreements into Spanish must be filed with the Argentine
courts;
(5)
the exercise and enforceability by the parties of their respective
rights under the Registration Statement is subject to general
principles of law. Such principles are of general application and
in applying such principles a court among others things, might not
allow a creditor to accelerate the maturity of a debt upon the
occurrence of a default deemed immaterial or abusive. Such
principles applied by a court might include a requirement that the
creditor act reasonably and in good faith;
(6) under Argentine laws judges are free to
consider evidence in accordance with their convictions (Article 386
of the National Code of Civil and Commercial Procedure of
Argentina); therefore any provision to the effect that any
instrument or document, shall be conclusive
or prima facie evidence of the contents of such instrument
or document may not be taken as conclusive prima facie evidence thereof; and
(7)
the opinions above are subject to the effects of bankruptcy,
insolvency, liquidation, reorganization and other similar laws
relating to or affecting the rights of creditors generally, by
general equitable principles and an implied covenant of good faith
and fair dealing.
We
hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the use of our name under the
caption “Legal Matters” in the Prospectus included in
the Registration Statement.
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Very
truly yours,
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/s/
Carolina Zang
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Estudio
Zang, Bergel & Viñes
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