11 Jan 2016 07:40
GRUPO CLARIN S.A.
Grupo Clarín Responds to Shareholder Information Request
On 8 January 2016, Grupo Clarín S.A. (the "Company") informed the Argentine Securities Commission and the Buenos Aires Stock Exchange that it had exchanged notes with a shareholder in connection with the agenda of the Extraordinary Shareholders' Meeting to be held on 12 January 2015.
Attached as Exhibit A and B, respectively, are free translations of the shareholder's request and the Company's response.
Enquiries:
In Buenos Aires:
Alfredo Marín/Agustín Medina Manson
Grupo Clarín
Tel: +5411 4309 7215
Email: investors@grupoclarin.com
In London:
Alex Money
Jasford IR
Tel: +44 20 3289 5300
Email: alexm@jasford.com
In New York:
Melanie Carpenter
I-advize Corporate Communications
Tel: +1 212 406 3692
Email: clarin@i-advize.com
EXHIBIT A
FREE TRANSLATION
Ministry of Economy and Public Finance
Secretariat of Economic Policy and
Development Planning
NOTE DNEPE No. 002/16
RE: FILE-S01: 0355444/2015
Extraordinary General Shareholders' Meeting of GRUPO CLARIN S.A. of 12/01/2016.-
BUENOS AIRES, 06 JAN 2016
MISTER CHAIRMAN:
I am pleased to address you in connection with the Extraordinary General Shareholders' Meeting of GRUPO CLARIN S.A. to be held on 12 January 2016 at 12.00 hours in the Autonomous City of Buenos Aires.
In order to have all the information necessary to issue the vote corresponding to this shareholder, I ask that you furnish the information relating to the following points, duly signed by the legal representative or a duly authorised person:
1. Executed copy of the Minutes of the Board of Directors that calls the Ordinary Shareholders' Meeting;
2. Copy of the latest version of the restated Bylaws;
3. Current Composition of the Board of Directors (directors and alternate directors) with the dates on which they were appointed, and inform on the term of their office:
4. Detail of the shareholder composition as of the date hereof;
5. With respect to the following points of the agenda, we request:
a. (Point 2) "In connection with the Plan to Conform the Company [to the Audiovisual Communication Services Law] that was declared formally admissible by AFSCA:
(i) Consideration and analysis of the various interpretative criteria used by AFSCA to approve the plans filed by other subjects bound by the obligations of Law No. 26,522 to conform [to the Audiovisual Communication Services Law];
(ii) Consideration of the results that the application of such criteria would have caused on the Company's and its subsidiaries' Plan to Conform [to the Audiovisual Communication Services Law];
(iii) Decision on the amendment [of such Plan to Conform [to the Audiovisual Communication Services Law] following the criteria already utilised by AFSCA. If applicable:
(a) To render without effect, in all relevant aspects, the decisions of the shareholders at the shareholders' meetings of 20 March 2014, of 30 June 2014-including the subsequent reconvened meeting after its adjournment on 11 July 2014-and of 22 September 2014, at which the shareholders made corporate decisions to implement such Plan to Conform the Company [to the Audiovisual Communication Services Law], including without limitation the partial spinoff of the Company and its subsidiaries and the divestment of assets. Consequently, to instruct the Board of Directors to appear before the various regulatory agencies involved and to render without effect all pending requests for authorisation and/or registrations relating to the Plan to Conform the Company [to the Audiovisual Communication Services Law] to be amended;
(b) Instruction to the Board of Directors of the Company to analyse, propose and submit to the consideration of the Shareholders, an amended Plan to Conform the Company [to the Audiovisual Communication Services Law] that, taking into account the best interest of the Company, reflects each and all of the criteria applied by AFSCA, always expressly reserving the right to subsequent amendments in the event of a change in the regulatory framework or if another subject bound by the obligations of Law No. 26,522 is given more favourable treatment."
(I) Detail of the interpretative criteria applied by AFSCA to approve the plans filed by other subjects bound by the obligations of Law No. 26,522 to conform [to the Audiovisual Communication Services Law] that will be submitted to the consideration of the Shareholders.
(II) Information relating ot the results that the application of such criteria would have caused on the Company's and its subsidiaries' Plan to Conform [to the Audiovisual Communication Services Law].
(III) Reasons why [the Board] proposes that the Company render without effect, in all relevant aspects, the decisions of the shareholders at the shareholders' meetings of 20 march 2014, of 30 June 2014-including the subsequent reconvened meeting after its adjournment on 11 July 2014-and of 22 September 2014.
In addition, we ask that you inform the measures that may have been adopted and the status of the corporate reorganisations tending towards the effective action to conform to the media law, within the framework of the decisions made at the shareholders' meetings of 20 march 2014, of 30 June 2014-including the subsequent reconvened meeting after its adjournment on 11 July 2014-and of 22 September 2014.
Finally, any other information that may be relevant to the consideration of this point [of the Agenda].
Note:
Please send the documentation to Hipólito Yrigoyen 25, 8th Floor, Office No. 826 (National Direction of Companies with State Participation).
We will not receive any documentation that is not duly signed by the legal representative or duly authorised person.
This Note is issued pursuant to and in accordance with the powers vested on the SECRETARIAT OF ECONOMIC POLICY AND DEVELOPMENT PLANNING (SPEyPD) by Decree No. 1278/12, which in turn, pursuant to SPEyPD Resolution No 110/12 delegated on the National Direction of Companies with State Participation (DNEPE), the power to request information and access the books and documents of companies, communicate attendance to Ordinary, Extraordinary and Special Shareholders' Meetings and any other communication necessary to exercise shareholder rights, among other powers and attributions.
Sincerely,
/s/ Lic. Federico Grosman
A/C National Direction of Companies with State Participation
TO MR.
CHAIRMAN OF GRUPO CLARIN S.A.
Jorge Carlos RENDO
By hand
FREE TRANSLATION EXHIBIT B
Buenos Aires, 8 January 2016
To the Shareholder of
Grupo Clarín S.A.
National Social Security Administration (ANSES)
By Hand
Attn: Lic. Federico Grosman
Cc: Mr. Legal and Administrative Secretary - Ministry of Economy (Hacienda) and Public Finance, Dr. Marcelo Eugenio Griffi
Dear Sir,
I, Agustín Medina Manson, in my capacity as Deputy Person in Charge of Relations with the Market of Grupo Clarín S.A. (hereinafter, interchangeably, the "Company" or "Grupo Clarín") hereby address You in response to your request for information, issued by means of a letter that was received at the headquarters of the Company on 6 January 2016.
Pursuant to the General Companies Law No. 19,550, we hereby respond to your request as follows:
1) Executed copy of the Minutes of the Board of Directors that calls the Ordinary Shareholders' Meeting.
Said minutes, with due identification of the signors, was made available to the general public through the Autopista de Información Financiera ("AIF") [online electronic disclosure system used by public companies] on 16.12.15 under ID No. 4-355041-D. Notwithstanding the above, we enclose herein copy of such minutes.
2) Copy of the latest version of the restated Bylaws.
The Company's bylaws were made available to the general public on the AIF on 30.10.2007 under ID No. 4-85482-D. After that date there were no amendments to the bylaws. Therefore, the copy attached in response to Your requests dated 18 April 2013, 18 February 2014, 15 April 2014 and 24 April 2015, corresponds to the latest version of the bylaws.
3) Current Composition of the Board of Directors (directors and alternate directors) with the dates on which they were appointed, and inform on the term of their office.
According to minutes of the shareholders' meeting of 28.04.15 (ID 4-303498-D); minutes of the meeting of the board of directors of 3.04.15 (ID 4-302525-D); minutes of the meeting of the board of directors of 24.11.15 (ID 4-349629-D), minutes of the meeting of the board of directors of 15.12.15 (ID 4-355041-D), the current composition of the Board of Directors of the Company is the following:
Chairman: Jorge Carlos Rendo; Vice-Chairman: Alejandro Alberto Urricelqui; Directors: Pablo César Casey, Horacio Eduardo Quirós, Héctor Mario Aranda, Ignacio Rolando Driollet, Lorenzo Calcagno, Alberto César Menzani, Gervasio Colombres and Sebastián Salaber. Alternate Directors: Martín Gonzalo Etchevers, Hernán Pablo Verdaguer, Juan Ignacio Giglio, Francisco Iván Acevedo, Sebastián Bardengo, Carlos Rebay, Luis Germán Fernández and Jorge Ignacio Oria.
The terms of office of all of the abovementioned directors and alternate directors last one year.
4) Detail of the shareholder composition as of the date hereof.
As reflected in the Annual Financial Statements of the Company, its equity capital is of Ps. 287,418,584 represented by 75,980,304 common, nominative, non-endorsable Class "A" shares, with a par value of Ps. 1 and entitled to 5 votes per share; 186,281,411 common, book-entry Class "B" shares, with a par value of Ps. 1 and entitled to one vote per share; and 25,156,869 common, nominative, non-endorsable Class "C" shares, with a par value of Ps. 1 and entitled to one vote per share.
The Company keeps a record of the Class A and Class C Shares. According to that registry, GC Dominio S.A. holds 75,980,304 common, nominative, non-endorsable Class "A" shares, with a par value of Ps. 1 and entitled to 5 votes per share, representing 26.4% of the equity capital and 64.2% of the votes of the Company and GS Unidos, LLC holds 25,156,869 common, nominative, non-endorsable Class "C" shares, with a par value of Ps. 1 and entitled to one vote per share, representing 8.75% of the equity capital and 4.3% of the votes of the Company.
The Registry of Class "B" shares is kept by Caja de Valores S.A.
5) With respect to the following points of the agenda, we request:
a. (Point 2) "In connection with the Plan to Conform the Company [to the Audiovisual Communication Services Law] that was declared formally admissible by AFSCA:
(i) Consideration and analysis of the various interpretative criteria used by AFSCA to approve the plans filed by other subjects bound by the obligations of Law No. 26,522 to conform [to the Audiovisual Communication Services Law];
(ii) Consideration of the results that the application of such criteria would have caused on the Company's and its subsidiaries' Plan to Conform [to the Audiovisual Communication Services Law];
(iii) Decision on the amendment [of such Plan to Conform [to the Audiovisual Communication Services Law] following the criteria already utilised by AFSCA. If applicable:
(a) To render without effect, in all relevant aspects, the decisions of the shareholders at the shareholders' meetings of 20 march 2014, of 30 June 2014-including the subsequent reconvened meeting after its adjournment on 11 July 2014-and of 22 September 2014, at which the shareholders made corporate decisions to implement such Plan to Conform the Company [to the Audiovisual Communication Services Law], including without limitation the partial spinoff of the Company and its subsidiaries and the divestment of assets. Consequently, to instruct the Board of Directors to appear before the various regulatory agencies involved and to render without effect all pending requests for authorisation and/or registrations relating to the Plan to Conform the Company [to the Audiovisual Communication Services Law] to be amended;
(b) Instruction to the Board of Directors of the Company to analyse, propose and submit to the consideration of the Shareholders, an amended Plan to Conform the Company [to the Audiovisual Communication Services Law] that, taking into account the best interest of the Company, reflects each and all of the criteria applied by AFSCA, always expressly reserving the right to subsequent amendments in the event of a change in the regulatory framework or if another subject bound by the obligations of Law No. 26,522 is given more favourable treatment.
I) Detail of the interpretative criteria applied by AFSCA to approve the plans filed by other subjects bound by the obligations of Law No. 26,522 to conform [to the Audiovisual Communication Services Law] that will be submitted to the consideration of the Shareholders
AFSCA it its dealings with the Company and vis a vis other audiovisual communication service licensees incurred in:
(i) Violation of the right to equal treatment before the law, consecrated under Art. 16 of the National Constitution.
(ii) Arbitrary and discriminatory treatment.
(iii) Misinterpretation of the laws; selective application of the regulatory framework.
This is grounded in the criteria that are developed below and that were applied selectively and exclusively to other licensees.
1) AFSCA, based on an Opinion issued by the Office of the Attorney General (Procuración del Tesoro), in the proceedings relating to TELEFE and DirecTV, decided that in spite of the provisions of section 31, subsection b) of Law No. 26,522 (which provides that for purposes of this law "controlling and controlled companies will be deemed as one same person, in accordance with Section 33 of the Business Companies Law No. 19,550, as amended"), "the law has not intended to put of a level of equality controlling companies and licensee companies in terms of the requirements that the [regulatory framework] imposes on the latter in order to access a license". This way, AFSCA narrows down to the licensee, in some selected cases, its control of the of the fulfilment of the obligation to conform to the legal framework approved by Law No. 26,522, without such analysis covering the controlling companies of such licensees. Consequently, AFSCA applied selectively it control of compliance with the legal framework [with a narrow standard] [constreñiblemente] in particular cases to the holder of the license, when in the case of Grupo Clarín [such control] extended to the controlling companies. The application of this criterion allowed, in the case of TELEFE the evasion of satisfaction of the foreign equity limitation and the condition that [the licensee] not be a public service provider (given that in the opinion in favour of the admissibility [of TELEFE's plan] there is no reference to the Digital Argentina Law that amends that condition), and in the case of DIRECTV, it allowed the evasion of the limits provided to make public offering of its shares that applies also to the controlling company.
2) In addition, it is also important to consider the position adopted by the Enforcement Authority with respect to the Plan of DirecTV in connection with the indirect ownership of closed television signals. Even when with respect to that group [AFSCA] should have applied the restriction set forth under subsection 3 of section 45 and under section 47-which forbids the accumulation of a satellite subscription television license with any other service-AFSCA considered that the controlling company of DirecTV did not have to divest the closed television signals in which it participated. In that regard, under Resolution No. 618/AFSCA/2014, it stated: "That DIRECTV LATIN AMERICA LLC participates in TORNEOS Y COMPETENCIAS SOCIEDAD ANÓNIMA, which in turn participates in TELERED IMAGEN SOCIEDAD ANÓNIMA owner of the signal TyC MAX; it also participates in PASIONES TC LLC owner of the signal PASIONES. That the limitations of subsection 3 of section 45 apply only to the licensees that are the owners of the signal registries and not to those that own and only maintain participations in the licensee corporate entities, for which reason they are not applicable to the licensee". In other words, what the Administration holds in this case (because it did not maintain the same position in the Plan of Grupo Clarín) is that the restrictions of Section 45 apply only to the licensee and not to its shareholders which in turn participate in other media (in this case, closed television signals), which participation would be barred by the application of sections 26, 45 (second paragraph), 45 subsection 3 and 46 of Law No. 26,522.
3) Also, in connection with the programming of closed signals that replicate the content of open signals for the rest of the country, in the admission of the proposal filed by Grupo América, [AFSCA] authorised the company that holds the broadcast television service to preserve not only its news signal but also the satellite signal that re-broadcasts the content of the open signal (América Satelital-of which it did not even divest). Therefore, in this case [Grupo América] not only maintains the same content, but it does so under the same ownership as the open signal, and it also reserves ownership of an additional signal (América 24) in breach of the signal limit provided for holders of broadcast television licenses.
In summary, there are multiple breaches that AFSCA failed to consider and [multiple] misinterpretations of the legal framework that AFSCA applied to mitigate and/or in certain cases eliminate the obligation to conform [to the media law] and/or to apply more indulgent criteria that, if extended to the Company, would have allowed it to consider a more advantageous project to conform [to the media law]. The interpretation and criteria applied to such groups should have been predicated of any other subject under the scope of the law, so as not to alter its right to equality consecrated under the National Constitution.
(II) Information relating ot the results that the application of such criteria would have caused on the Company's and its subsidiaries' Plan to Conform [to the Audiovisual Communication Services Law].
If the Company had known and had operated on the basis of the interpretative criteria applied by AFSCA in the cases cited above, the Plan to Conform the Company [to the Audiovisual Communication Services Law] would have necessarily been different. Thus, for example, the control of the multiple-license regime would have been concentrated on each individual licensee. Following this criterion, section 45 would apply to each one of the licensees in which the Company has a direct or indirect participation individually, and the limit of the licenses at the national and local level would have been concentrated on each individual licensee and not, as projected, on the Company. This would have made it possible for the Company to maintain its participation in each of its subsidiaries, to the extent that each licensee conformed to the limitations imposed by the Law. Following this reasoning, for example, and looking no further, the partial spinoff process of the Company that was approved by the Shareholders would not have been necessary because, according to the criterion applied by AFSCA for other cases, the control of the multiplicity of licenses is reduced to the licensee and does not extend to its controlling companies.
In addition, the application of the criterion applied by AFSCA to the case of DIRECTV in connection with the indirect ownership of closed television signals would have allowed the Company to keep the registry of closed television signals that was divested by ARTEAR in IESA, without the need to divest the shares of the latter company in favour of a third party.
Finally, if the criterion applied by AFSCA in the case of Grupo América with respect to the programming of the closed signals that replicate the content of open signals to the rest of the country had been applied to the Company, AFSCA would not have considered that ARTEAR was in breach on its obligation to conform [to the media law], in the understanding that the owner of the signal (in this case IESA) could not continue to purchase the content of the Signal El 13 Satelital from ARTEAR.
The Company, when it filed its Plan to Conform [to the Audiovisual Communication Services Law] expressly reserved the right (i) to amend the proposal in the event that that Authority were to allow and/or authorise the application of a more favourable interpretation of the law with respect to any other licensee and/or holder of a registration, and (ii) to challenge judicially any violation of the guarantees of due process, equality before the law and the right to defense that may occur in the process to conform [the Company to the media law].
On the basis of (i) the reservations made in the Proposal to Conform [the Company to the Audiovisual Communication Services Law] and of the multiple vices and iniquities contained in the criteria applied by AFSCA in the analysis of the plans to conform to Law No. 26,522 [filed by] the different subjects under the scope of such law, including without limitation the serious affectation of the constitutional right to equality [before the law] of the different subjects and especially, the Company, and (ii) the provisions of Decree No. 267/16 that are nothing other then the confirmation by the Administration itself of the reality of the iniquities to which the Company has been alerting, we understand that [the Board must] propose to the shareholders of the Company to render without effect the decisions of the shareholders that were the basis for the Proposal to Conform [the Company to the Audiovisual Communication Services Law], and for them to instruct the Board of Directors to analyse and recommend the course of action that [the Company] should follow in order to comply with the current legal framework, with special consideration of recent developments.
(III) Reasons why [the Board] proposes that the Company render without effect, in all relevant aspects, the decisions of the shareholders at the shareholders' meetings of 20 march 2014, of 30 June 2014-including the subsequent reconvened meeting after its adjournment on 11 July 2014-and of 22 September 2014.
In addition, we ask that you inform the measures that may have been adopted and the status of the corporate reorganisations tending towards the effective action to conform to the media law, within the framework of the decisions made at the shareholders' meetings of 20 march 2014, of 30 June 2014-including the subsequent reconvened meeting after its adjournment on 11 July 2014-and of 22 September 2014.
In the first place, it is for all the reasons described in the preceding points that [the Board] proposes to the Shareholders that they render without effect the decisions set forth in the notice that calls the meeting.
In connection with the measures adopted by the Company tending to the effective action to conform the Company to Law No. 26,522, we repeat that, as duly informed to that shareholder in response to the request sent on 15 April 2015, pursuant to the decision of the Shareholders at said Shareholders' Meetings, the Board adopted the measures and made the filings set forth on the list that was attached at that time. However, even though the Company submitted evidence of its compliance with all of the steps tending towards obtaining the corresponding authorisations to proceed with the implementation of the Plan to Conform [the Company to the Audiovisual Communication Services Law], as such plan was duly presented to the shareholders, AFSCA issued Resolution No. 1121/AFSCA/2014, whereby it rejected illegally and arbitrarily the proposed partial spinoffs of the Company and Cablevisión S.A. and the share transfers contained in the Plan, and ordered the ex-officio transfer. Similarly, and to add more detail, we note, as we did at the time, that the Company's Spinoff Prospectus, which was approved and published pursuant to applicable law, states that the progress and the consummation of such spinoff was subject to the granting by the competent authorities of all the Regulatory Authorizations (as defined and described in such Prospectus), [a condition that has] not occurred to date and, therefore, the partial spinoff of the Company that had been duly approved by the Shareholders on 30 June 2014 has not been consummated and may be rendered without effect by the Shareholders.
We state for the record that this response, together with its request, shall be made available to the general public through AIF and the Buenos Aires Stock Exchange.
We are at your disposal to make any clarifications that you may deem relevant.
Sincerely,
/s/ Agustín Medina Manson