UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14D-9
(RULE
14d-101)
SOLICITATION/RECOMMENDATION
STATEMENT UNDER
SECTION
14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment
No. 1)
(Name of
Subject Company)
YPF
Sociedad Anónima
(Name of
Person(s) Filing Statement)
Class A
Common Shares; Class B Common Shares
Class C
Common Shares; Class D Common Shares
Par value
10 pesos per share (the “Class
D Shares”)
and
American
Depositary Shares, Each Representng One Class D Share (the “ADSs”)
(Title of
Class of Securities)
Class A
Shares (P9897X107); Class B Shares (P9897X115)
Class C
Shares (P9897X123); Class D Shares (P9897X131)
American
Depositary Shares (984245100)
(CUSIP
Number of Class of Securities)
Alejandro
D. Quiroga
YPF
Sociedad Anónima
Avenida
Pte. R. Sáenz Peña 777
C1035AAC
Ciudad Autónoma de Buenos Aires, Argentina
(54-11)
4329-2000
(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and
Communications on Behalf of the Person(s) Filing Statement)
With
a Copy to:
Nicholas
A. Kronfeld
Davis Polk
& Wardwell
450
Lexington Avenue
New York,
NY 10017
(212)
450-4000
Item
1. Subject Company Information.
The name
of the subject company to which this Solicitation/Recommendation Statement on
Schedule 14D-9 (the “Schedule”) relates is YPF
Sociedad Anónima, an Argentine sociedad anónima (the “Company”). The
address of the principal executive offices of the Company is Avenida Pte. R.
Sáenz Peña 777, C1035AAC Ciudad Autónoma de Buenos Aires, Argentina and the
telephone number of the principal executive offices of the Company is (54-11)
4329-2000.
This
Schedule relates to the Company’s Class D Shares (the “Class D Shares”), each with a
par value of 10 pesos per share and the American Depositary Shares each
representing one Class D Share (the “ADSs”). As of
December 31, 2007, there were 393,195,669 Class D Shares
outstanding.
Item
2. Identity and Background of Filing Person.
The filing
person is the subject company. The Company’s name, business address
and business telephone number are set forth in Item 1 above.
This
Schedule relates to the tender offer by Petersen Energía Inversosa, S.A.
(together, with certain of its affiliates, “Petersen”) , a Spanish
sociedad anónima to purchase any and all outstanding ADSs or Class D Shares
represented thereby that are not owned by Petersen or Repsol YPF, S.A., a
Spanish sociedad anónima (together with certain of its affiliates, “Repsol”) at a purchase price
of $49.45 per ADS or Class D Share represented thereby (the “Offer Price”), net to the
seller in cash (less any amounts withheld under applicable tax laws), without
interest, on the terms and subject to the conditions set forth in the Offeror’s
offer to purchase, dated as of September 11, 2008, as amended by
Amendment No. 1 to the Schedule TO filed by Petersen with the Securities and
Exchange Commission (the “SEC”) on September 29,
2008 (the “Offer to
Purchase”), and the related letters of transmittal (together, the “Offer”). The Offer
is being made in conjunction with an offer by Petersen in Argentina for all
outstanding Class A, Class B, Class C and Class D Shares (but not
ADSs). The price offered in the Argentine Offer is the same as the
Offer Price in the Offer, payable in Argentine pesos in the case of the
Argentine Offer.
On May
20, 2008, Petersen announced its intention to make the Offer and
on September 11, 2008, Petersen made
the Offer to Purchase to our shareholders and filed the Offer to Purchase with
the SEC. On September 29, 2008, Petersen amended the Offer to
Purchase by filing Amendment No. 1 to the Schedule TO with the SEC. The Offer is
scheduled to expire at 5:00 p.m. New York time on October 20,
2008.
Petersen’s
address, as set forth in the Offer to Purchase, is Cerrito 740, 11 Piso,
(C1010AAP) Buenos Aires, Argentina.
Item
3. Past Contracts, Transactions, Negotiations and
Agreements.
The
information set forth under Section 11 “Background of the Offer – Past Contacts,
Transactions, or Negotiations with YPF” in the Offer to Purchase is incorporated
herein by reference.
Item
4. The Solicitation or Recommendation.
Recommendation
of the Company Board
The Board
of Directors (the “Board”) has unanimously
determined to recommend that the Company’s stockholders (other than Petersen and
Repsol) tender their Class A, Class B and Class C Shares and ADSs or Class D
Shares represented thereby in the Offer because (i) the Offer Price complies
with the minimum price provisions in article seven of the Company’s bylaws
pursuant to which the Offer is being made and (ii) shareholders will receive
payment in cash for all of the securities tendered and
accepted. Payment is conditioned on receipt of the Required
Regulatory Approval (as defined in the Offer to Purchase) prior to January 15,
2009. In making this recommendation, the Board did not consider any
matters other than the foregoing two factors. In particular, the
Board did
not obtain a valuation of the Company and did not consider whether the Offer
Price was fair from a financial perspective.
A copy of
a letter from the Company to the National Securities Commission of Argentina and
its attached recommendation of the Board regarding the Offer are included as
exhibits to this Schedule 14D-9 and are incorporated herein by
reference.
Intent
to Tender
After
reasonable inquiry and to its best knowledge, the Company understands no
director or executive officer of the Company intends to tender, sell or hold
ADSs or Class D Shares represented thereby.
Item
5. Person/Assets Retained, Employed, Compensated or
Used.
Neither
the Company, nor any person acting on its behalf, has employed, retained or
compensated any person to make solicitations or recommendations to stockholders
on its behalf concerning the Offer, except that such solicitations or
recommendations may be made by directors, officers or employees of the Company,
for which they shall receive no additional compensation.
Item
6. Interest in Securities of the Subject Company.
No
transactions in the ADSs or the Class D Shares represented thereby have been
effected during the past 60 days by the Company or, to the knowledge of the
Company, by any executive officer, director or affiliate of the
Company.
Item
7. Purposes of the Transaction and Plans or Proposals.
The
Company is not now undertaking or engaged in any negotiations in response to the
Offer that relate to, or would result in, one or more of the following or a
combination thereof: (i) a tender offer for or other acquisition of any of the
Company’s securities by the Company, its subsidiaries or any other person, (ii)
any extraordinary transaction, such as a merger, reorganization or liquidation,
involving the Company or any of its subsidiaries, (iii) a purchase, sale or
transfer of a material amount of assets by the Company or any of its
subsidiaries or (iv) any material change in the present dividend rate or policy,
indebtedness or capitalization of the Company.
There is
no transaction, resolution of the Board, agreement in principle or signed
contract that has been entered into in response to the Offer that relates to or
would result in one or more of the events referred to in the previous
paragraph.
Item
8. Additional Information.
None.
Item
9. Exhibits.
(e)(1)
Share Purchase Agreement, dated as of February 21, 2008, by and among Repsol
YPF, S.A., Repsol Exploración, S.A., Caveant, S.A., Repsol YPF Capital, S.L. and
Petersen Energía, S.A.*
(e)(2)
Shareholders’ Agreement, dated as of February 21, 2008, by and among Repsol YPF,
S.A., Repsol Exploración, S.A., Caveant, S.A., Repsol YPF Capital, S.L. and
Petersen Energía, S.A.*
(e)(2)
Registration Rights Agreement, dated as of February 21, 2008, by and among YPF
Sociedad Anónima, Repsol YPF, S.A., Petersen Energía S.A., HSBC Bank plc, as
collateral agent, Credit Suisse, London Branch, as administrative agent, and
certain other parties named therein*
(e)(3)
First Option Agreement, dated as of February 21, 2008, by and among Repsol YPF,
S.A., Repsol Exploración, S.A., Caveant, S.A., Repsol YPF Capital, S.L., Enrique
Eskenazi, Sebastián Eskenazi, Matías Eskenazi Storey and Ezequiel Eskenazi
Storey*
(e)(4)
Second Option Agreement, dated as of February 21, 2008, by and among Repsol YPF,
S.A., Repsol Exploración, S.A., Caveant, S.A., Repsol YPF Capital, S.L., Enrique
Eskenazi, Sebastián Eskenazi, Matías Eskenazi Storey and Ezequiel Eskenazi
Storey*
(e)(5)
Seller Credit Agreement, dated as of February 21, 2008, among Petersen Energía,
S.A., Repsol YPF, S.A. and The Bank of New York, as collateral
agent*
(e)(6)
Direct Agreement, dated as of February 21, 2008, among Repsol YPF, S.A., Credit
Suisse International, Goldman Sachs International Bank, BNP Paribas, Banco Itaú
Europa, S.A., Petersen Energía, S.A., Credit Suisse, London Branch and HSBC Bank
plc, as collateral agent*
(e)(7)
Assignment of Dividend Rights Agreement, dated as of February 21, 2008, among
Repsol YPF, S.A., Petersen Energía, S.A. and YPF S.A.*
(e)(8)
Agreement, dated as of February 21, 2008, among Repsol YPF, S.A., Petersen
Energía Pty Ltd, Enrique Eskenazi, Sebastián Eskenazi, Matías Eskanezi Storey
and Ezequiel Eskenazi Storey*
(e)(9)
Letter Agreement, dated as of February 21, 2008, among YPF Sociedad Anónima,
Petersen Energía Pty Ltd. and Repsol YPF, S.A.*
(e)(10)
Letter Agreement, dated as of February 5, 2008, between YPF Sociedad Anónima and
Repsol YPF, S.A.*
(e)(11)
Intercreditor Agreement, dated as of February 21, 2008, by and among Repsol YPF,
S.A, Credit Suisse International, Goldman Sachs International Bank, BNP Paribas,
Banco Itaú Europa, S.A. Sucursal Financeira Exterior, Petersen Energía, S.A.,
Petersen Energía PTY, Ltd., Credit Suisse, London Branch, as senior agent and
intercreditor agent and HSBC Bank plc, as collateral agent*
(e)(12)
Registration Rights Agreement, dated as of February 21, 2008, among Repsol YPF,
S.A., Petersen Energía, S.A., Enrique Eskenazi, Sebastián Eskenazi, Matías
Eskenazi Storey and Ezequiel Eskenazi Storey, the Option Administrative Agent
(as defined therein) and the Holders (as defined therein)*
(e)(13)
Letter from the Company to the National Securities Commission of Argentina,
dated as of May 23, 2008, with the attached Report of the Board of YPF S.A.
regarding the tender offer submitted by Petersen Energía Inversora
S.A..**
*Incorporated
by reference to the Schedule 13D/A filed by Repsol YPF, S.A. on February 25,
2008.
**Incorporated
by reference to the Form 6-K filed by YPF Sociedad Anónima on May 28,
2008.
SIGNATURE
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
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YPF
SOCIEDAD ANÓNIMA
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By:
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/s/
Antonio Gomis Sáez
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Name:
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Antonio
Gomis Sáez
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Title:
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Chief
Operating Officer
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