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SHARE PURCHASE AGREEMENT
BY AND AMONG
MS. XXXXX XXXXXX XXXXXXXX XX XXXXX COMPANC,
SUDACIA SOCIEDAD ANONIMA,
AND
APCO ARGENTINA, INC.
DATED AS OF OCTOBER 23, 2002
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SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of October 23, 2002 ("Agreement") by
and among Ms. XXXXX XXXXXX XXXXXXXX XX XXXXX COMPANC, an individual resident in
Argentina ("Xx. Xxxxx Companc"), SUDACIA SOCIEDAD ANONIMA., a sociedad anonima
organized under the laws of Argentina ("Sudacia") and APCO ARGENTINA, INC., a
Cayman Islands company ("Apco", together with Xx. Xxxxx Companc and Sudacia, the
"Parties", and each of them, individually, the "Party").
WHEREAS, pursuant to a certain letter-agreement executed among the
shareholders of PETROLERA XXXXX COMPANC S.A. ("PPC") on August 12, 1968, Apco
has exercised on September 11, 2002, its preferential right to acquire from Xx.
Xxxxx Companc 3,160 shares of voting common stock of PPC and to acquire from
Sudacia 24,540 shares of voting common stock of PPC (collectively, the "Shares")
proposed for transfer by Xx. Xxxxx Companc and Sudacia (collectively, the
"Selling Shareholders"); and
WHEREAS, Apco and the Selling Shareholders desire to enter into this
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATIONS.
The following terms will have the following meanings when used as
capitalized in this Agreement.
"Capital Stock" means any and all shares, interests, quotas, participation or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Closing" means the consummation and completion of the purchase and sale of the
Shares, the payment of the Purchase Price and all other actions or transactions
to be completed and consummated by the Closing in accordance with this Agreement
and/or applicable laws.
"Closing Date" is defined in Section 2.3 below.
"Consent" means any approval, consent, license, permit, registration,
ratification, waiver, or other authorization (including any Governmental
Authorization) issued, granted, given or otherwise made available
"Contractual Obligation" means, as to any Person, any provision of any security
issued by any such Person or any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Debt" of any Person means any and all indebtedness, Obligations or liabilities
of such Person created or arising under any and all payments, notes, bonds,
debentures, loans or other similar instruments.
"Encumbrance" means any charge, claim, mortgage, servitude, marital property
interest, condition, equitable interest, Lien, option, pledge, encumbrance,
right of first refusal, or restriction of any kind, including any restriction on
use, voting, transfer, receipt of income, or exercise of any other attribute of
ownership, other than those that may exist in favor of any party hereto (if
any).
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Lien" means any lien, security interest or other charge or Encumbrance of any
kind, or any other type of preferential arrangement, including without
limitation, the lien or retained security title of a conditional vendor, any
easement, right of way or other encumbrance on title to real property.
"Obligation" means with respect to any Person, any payment, performance or other
obligations of such Person of any kind, including, without limitation, any
liability on any claim arising from, without limitation, the obligation to pay
principal, interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by any party under this Agreement.
"Person" means an individual, partnership, corporation, limited liability
company, trust, joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Requirement of Law" means any applicable constitution, law, statute, treaty,
rule, regulation, ordinance, decree, binding case law, order, injunction,
notice, approval, permit, license, authorization or judgment, including, without
limitation, any consolidations, amendments, re-enactments, extensions or
replacements of any of the foregoing.
"Selling Shareholders" is defined in the Recitals of this Agreement.
"Shareholders Agreement" shall have the meaning set forth in Section 3.1.(b)
hereof.
"Shares" is defined in the Recitals of this Agreement.
SECTION 2. PURCHASE OF PPC CAPITAL STOCK.
2.1 PURCHASED SHARES. Subject to the terms and conditions of this
Agreement, Apco hereby agrees to purchase from the Selling Shareholders, and the
Selling Shareholders hereby agree to sell to Apco, all of the Shares.
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2.2 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Shares will be US$792,603.57 for the Shares owned by Xx. Xxxxxxxx and
US$6,155,218.86 for the Shares owned by Sudacia, payable as set forth in Section
5.1(c).
2.3 CLOSING. The Closing will take place at the offices of Bruchou,
Xxxxxxxxx Xxxxxx, Xxxxxxxx & Xxxxxxx, located at Ing. Xxxxxxx Xxxxx 000, 00xx
xxxxx, Xxxx xx Xxxxxx Xxxxx, Xxxxxxxxx, on the same date hereof after the
execution of this Agreement (the "Closing Date").
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 THE SELLING SHAREHOLDERS REPRESENTATIONS AND WARRANTIES. Each of
the Selling Shareholders (as applicable to it below) severally represents and
warrants to Apco as of the date of this Agreement and the Closing that:
(a) Due Incorporation. Sudacia is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, and
has the power and authority and the legal right to enter into and deliver this
Agreement and to perform its obligations hereunder;
(b) Shares. All of the Shares to be sold by each Selling
Shareholder to Apco have been validly issued to such Selling Shareholder, are
fully paid and non assessable, all in compliance with all applicable
Requirements of Law, and are owned by such Selling Shareholder, in the amount
specified, in the first Recital hereto and are free and clear of all
Encumbrances whatsoever. Immediately after the Closing, the Shares in the
aggregate will represent 5.54% of the outstanding capital stock of PPC, which
total will include the number of all common and preferred stock issued or
otherwise issuable from other forms of equity or of Debt (if any), including
other preferred shares, warrants, convertible Debt and equity and options to
purchase in PPC. The Shares shall be transferred directly to Apco at Closing by
the Selling Shareholders, free and clear of all Encumbrances and subject to the
provisions of the September 6, 1974 shareholders agreement (the "Shareholders
Agreement"), and upon such transfer Apco will be the sole record and beneficial
owner of the Shares;
(c) Due Authorization, No Violations or Defaults. Each Selling
Shareholder has the power and authority and the legal right to execute and
deliver and perform her or its obligations under this Agreement, and has taken
all necessary action to authorize their execution, delivery and performance of
this Agreement to which such Selling Shareholder is a party;
(d) Due Execution and Delivery; Enforceability. This Agreement has
been duly executed and delivered by the Selling Shareholders and is the legal,
valid and binding obligation of such Selling Shareholders, enforceable against
such Selling Shareholders in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally;
(e) No Violation. The execution, delivery and performance of this
Agreement will not violate in any material respect any provision of any
Requirement of Law or Contractual Obligation of such Selling Shareholders and
will not result in or require the creation or
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imposition of any Encumbrance on the Shares or any of the properties or revenues
of such Selling Shareholder pursuant to any such Requirement of Law or
Contractual Obligation of such Selling Shareholder;
(f) Governmental Authorizations. No material consent or
authorization of, filing with or other act by or in respect of any Governmental
Authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
3.2 APCO REPRESENTATIONS AND WARRANTIES. Apco represents and warrants
to the Selling Shareholders as of the date of the Agreement and the Closing
that:
(a) Due Incorporation. Apco is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, and
has the power and authority and the legal right to enter into and deliver this
Agreement and to perform its obligations hereunder;
(b) Due Authorization, No Violations or Defaults. Apco has the
power and authority and the legal right to execute and deliver and perform its
obligations under this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance hereof;
(c) Due Execution and Delivery; Enforceability. This Agreement has
been duly executed and delivered by Apco and is the legal, valid and binding
obligation of Apco, enforceable against Apco in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally;
(d) No Violation. The execution, delivery and performance of this
Agreement will not violate in any material respect any provision of any
Requirement of Law or Contractual Obligation of Apco;
(e) Governmental Authorizations. No material consent or
authorization of, filing with or other act by or in respect of any arbitrator or
Governmental Authority is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement;
(f) Reservation of Rights. Apco reserves its claim to conversion
of its holding of preferred, non-voting PPC shares into ordinary, voting shares,
based on agreements that Apco alleges exist with the PPC shareholders in this
regard.
SECTION 4. CONDITIONS PRECEDENT TO APCO'S OBLIGATION TO CLOSE.
Apco's obligation to purchase the Shares and to take the other actions
required to be taken by Apco at the Closing are subject to the satisfaction, on
or prior to the Closing, of each of the following conditions (any of which may
be waived by Apco, in whole or in part):
4.1 SELLING SHAREHOLDER CLOSING OBLIGATIONS. The following acts will be
completed at Closing (it being understood that no action to be taken at the
Closing and no document to be
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executed or delivered at Closing shall be deemed taken, executed or delivered
until all have been taken, executed and delivered):
(a) Government Approvals. On the Closing Date or immediately
thereafter, if required, the Selling Shareholders, and/or PPC, shall give notice
to all applicable Governmental Authorities in Argentina of the transfer of the
Shares and other matters contemplated hereby, as required by any Requirement of
Law, and
(b) Share Certificates; Stock Ledger. The Selling Shareholders
shall deliver certificates for the Shares to Apco together with a copy of a duly
executed stock transfer letter requesting PPC to reflect the transfer of the
Shares to Apco on the Stock Ledger of PPC and to issue new share certificates in
the name of Apco.
4.2 ACCURACY OF REPRESENTATIONS. All of the representations and
warranties of the Selling Shareholders in this Agreement must be accurate in all
material respects as of the Closing Date.
4.3 THE SELLING SHAREHOLDERS' PERFORMANCE. All of the covenants and
obligations that the Selling Shareholders are required to perform or to comply
with pursuant to this Agreement on or prior to the Closing, and each of these
covenants and obligations, must have been duly performed and complied with in
all material respects.
4.4 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or threatened in writing against Apco, or against any entity
affiliated with Apco, any judicial, administrative or arbitral proceeding (a)
involving any challenge to, or seeking damages or other relief in connection
with, this Agreement or any of the transactions contemplated hereby, or (b) that
may have the effect of preventing, delaying, making illegal, or otherwise
interfering with any of this Agreement or the transactions contemplated hereby.
4.5 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS. There must not
have been made or threatened in writing by any Person, other than the Selling
Shareholders, any claim asserting that such Person, rather than a Selling
Shareholder, (a) is the holder or the beneficial owner of, or has the right to
acquire or to obtain beneficial ownership of, or any voting, equity, or other
ownership interest in, PPC or the Shares, or (b) is entitled to all or any
portion of the Purchase Price payable for the Shares as a result of rights or
interests the may claim over the Shares.
SECTION 5. CONDITIONS PRECEDENT TO THE SELLING SHAREHOLDERS' OBLIGATION TO
CLOSE.
The Selling Shareholders' obligation to sell the Shares and to take the other
actions required to be taken by the Selling Shareholders at the Closing are
subject to the satisfaction, on or prior to the Closing, of each of the
following conditions (any of which may be waived by the Selling Shareholders, in
whole or in part):
5.1 APCO'S CLOSING OBLIGATIONS. The following acts will be completed at
Closing (it being understood that no action to be taken at the Closing and no
document to be executed or delivered at Closing shall be deemed taken, executed
or delivered until all have been taken, executed and delivered):
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(a) Government Approvals. On the Closing Date or immediately
thereafter, if required, Apco and/or PPC, shall give notice to all applicable
Governmental Authorities in Argentina of the transfer of the Shares and other
matters contemplated hereby, as required by any Requirement of Law.
5.2 ACCURACY OF REPRESENTATIONS. All of the representations and
warranties of Apco in this Agreement must be accurate in all material respects
as of the Closing Date.
5.3 APCO'S PERFORMANCE. All of the covenants and obligations that Apco
is required to perform or to comply with pursuant to this Agreement on or prior
to the Closing, and each of these covenants and obligations, must have been duly
performed and complied with in all material respects.
5.4 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or threatened in writing against the Selling Shareholders,
or against any entity affiliated with any of them, any judicial, administrative
or arbitral proceeding (a) involving any challenge to, or seeking damages or
other relief in connection with, this Agreement or any of the transactions
contemplated hereby, or (b) that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of this Agreement or the
transactions contemplated hereby.
5.5 PURCHASE PRICE. Simultaneously with the transfer of the Shares at
Closing Apco will deliver the Purchase Price into the bank account/s previously
notified in writing to Apco by the Selling Shareholders.
SECTION 6. TERMINATION.
6.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) (i) by Apco if a material breach of any provision of this
Agreement has been committed by the Selling Shareholders and such breach has not
been waived; or (ii) by the Selling Shareholders if a material breach of any
provision of this Agreement has been committed by Apco and such breach has not
been waived;
(b) (i) by Apco if any of the conditions in Section 4 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Apco to comply with its
obligations under this Agreement) and Apco has not waived such condition on or
before the Closing Date; or (ii) by the Selling Shareholders if the conditions
in Section 5 have not been satisfied or if satisfaction of such a condition is
or becomes impossible (other than through the failure of the Selling
Shareholders to comply with their obligations under this Agreement) and the
Selling Shareholders have not waived such condition on or before the Closing
Date;
(c) by mutual written consent of Apco and the Selling Shareholders
signed by their respective authorized Representatives; or
6.2 EFFECT OF TERMINATION. Each party's right of termination under
Section 6.1 is in addition to any other rights it may have under this Agreement
or otherwise, and the exercise of such
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right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 6.1, all further obligations of the parties under
this Agreement will terminate, except that (i) the obligations in Sections 7 and
11 will survive; and (ii) no such termination shall relieve any party hereto of
any liability for any breach of this Agreement prior to the date of such
termination.
SECTION 7. INDEMNIFICATION; REMEDY.
7.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. All
representations and warranties herein will survive the Closing for five (5)
years. The 5-year limitation period provided in this Section 7.1 shall not apply
to Section 3.2(f) of this Agreement, which shall survive indefinitely.
7.2 INDEMNIFICATION AND PAYMENT OF LOSS BY SELLING SHAREHOLDERS. Each
of the Selling Shareholders will indemnify and hold harmless each Apco and its
officers, directors and representatives (collectively, the "Apco Indemnified
Persons") for, and will pay to the Apco Indemnified Persons the amount of any
loss, cost or expense arising from or in connection with:
(a) any material inaccuracy on the date hereof of any
representation or warranty made by the Selling Shareholders in this Agreement;
and
(b) any material breach by the Selling Shareholders of any
obligation of the Selling Shareholders in this Agreement.
7.3 INDEMNIFICATION AND PAYMENT OF LOSS BY APCO. Apco will indemnify
and hold harmless the Selling Shareholders and their officers, directors and
representatives (collectively, the "Selling Shareholder Indemnified Persons",
and together with the Apco Indemnified Persons, the "Indemnified Persons") for,
and will pay to the Selling Shareholder Indemnified Persons the amount of any
loss, cost or expense arising from or in connection with:
(a) any material inaccuracy on the date hereof of any
representation or warranty made by Apco in this Agreement; or
(b) any material breach by Apco of any obligation of Apco in this
Agreement.
7.4 REMEDIES NOT EXCLUSIVE. If the Selling Shareholders have not
complied with their obligations hereunder, including the obligation to transfer
the Shares as contemplated hereby, then Apco may seek specific performance
thereof to the fullest extent permitted by applicable Argentine law. If Apco has
not complied with its obligations hereunder, including the obligation to pay the
Purchase Price as provided in this Agreement, then the Selling Shareholders may
seek damages and reimbursement of expenses and costs to the fullest extent
permitted by applicable Argentine law.
7.5 PROCEDURE FOR INDEMNIFICATION. If any claim or demand is asserted
against an Indemnified Person in respect of which such Indemnified Person may be
entitled to indemnification under this Agreement, written notice of such claim
or demand shall promptly be given to the Indemnifying Person. The Indemnified
Person shall have the right, but not the obligation, to assume the entire
control of the defense, compromise, or settlement of the matter, including, at
the Indemnifying Person expense, employment of counsel of the Indemnified
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Person's choice. Any settlement or compromise of a matter by the Indemnifying
Person, if the Indemnified Person has not made the election herein, shall
include a full release of claims against the Indemnified Person which has arisen
out of the indemnified claim or demand.
SECTION 8. NOTICES.
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when
actually received, and may be (a) delivered by hand, (b) sent by telecopier
(with written confirmation of receipt) or (c) sent by an internationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a party may designate by notice to the other
parties):
If to Apco, to:
Maipu 1300, piso 8 degrees
(C1006ACT) Buenos Aires
Attention: Xx. Xxxxxxx X. Xxxxx
x.x. Xxxxxxx & Brea,
Maipu 1300, piso 10
C1006ACT Buenos Aires
Attention: Xx. Xxxxxxx X. Rattagan
If to The Selling Shareholders, to:
Xxxxxxxxx 2895
Loma Verde
(B1625XAF) Xxxxxxx - Provincia de Buenos Aires
Attention: Messrs. Xxxxxx Xxxx and Xxxxxx Xxxxx
c.c. Bruchou, Xxxxxxxxx Xxxxxx, Xxxxxxxx & Xxxxxxx,
Ing. Xxxxxxx Xxxxx 275, piso 12
X0000XXX Xxxxxx Xxxxx
Xxxxxxxxx: Mr. Xxxxx Xxxxxxxxx Xxxxxx
SECTION 9. JURISDICTION.
This Agreement shall be enforced in the commercial ordinary courts of the city
of Buenos Aires Argentina. Final judgment issued by such courts shall be
conclusive.
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SECTION 10. MISCELLANEOUS.
(a) Each Party to this Agreement will bear its respective expenses
incurred in connection with the preparation, negotiation, execution, and
performance of this Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel, and
accountants, and none of the Selling Shareholders shall cause PPC to bear any of
its expenses incurred by it, either prior to or following Closing.
(b) This Agreement supersedes all prior agreements and
communications between the parties with respect to this sale.
(c) This Agreement may not be amended except by a written
agreement of the parties. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the agreements
or documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of such claim or right unless in writing signed by such
party; (b) no waiver that may be given by a party will be applicable except in
the specific instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such party or of
the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement or the documents referred
to in this Agreement.
(d) Each party to this Agreement agrees to execute, acknowledge,
deliver file and record such further certificates, amendments, instruments or
documents, and to do all such other acts and things, as may be required by law
or as may be necessary or advisable to carry out the intent and purpose of this
Agreement.
(e) All headings and captions contained in this Agreement are
inserted for convenience only and shall not be deemed part of this Agreement.
(f) This Agreement shall be governed and construed in accordance
with the laws of Argentina.
(g) This Agreement may be signed in one or more counterpart
copies, each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
(h) Every provision of this Agreement is intended to be several.
The invalidity and unenforceability of any particular provision of this
Agreement in any jurisdiction shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
(i) Any taxes or other charges in connection with the transfer of
the Shares or any transaction contemplated hereby shall be borne by the Party
obligated in respect of such tax or other charge. The Parties agree and
understand that there is no income or other tax withholding
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in Argentina required in connection with the payment of the Purchase Price to
the Selling Shareholders, provided, however, the Parties further agree that, in
the event that any such requirement for withholding or the payment of such tax
is assessed or asserted by any Government Authority in respect of the payment of
the Purchase Price, such withholding or payment shall be the obligation of the
Selling Shareholders.
(j) This Agreement shall be binding upon the parties hereto,
their respective successors, executors, administrators, legal representatives,
heirs and legal assigns and shall inure to the benefit of the parties hereto
and, except as otherwise provided herein, their respective successors,
executors, administrators, legal representatives, heirs and legal assigns. Other
than with respect to Section 11 (b) hereof, no person other than the parties
hereto and their respective successors, executors, administrators, legal
representatives, heirs and legal assigns, shall have any rights or claims under
this Agreement.
(k) This Agreement constitutes the entire agreement of the
parties hereto on the subject matter hereof, and can only be amended by a
written instrument signed by all of the parties hereto. No party may assign any
of its rights under this Agreement without the prior written consent of the
other parties. Nothing expressed or referred to in this Agreement will be
construed to give any person, other than the parties hereto, any legal or
equitable right, remedy, or claim under or with respect to this Agreement or any
provision of this Agreement. This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their successors and assigns.
(l) The parties will use their best efforts to coordinate and
harmonize any public announcement or similar publicity with respect to this
Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto, individually or acting through their
duly authorized representatives, have caused this Agreement to be duly executed
as of the date first above written.
/s/* APCO Argentina Inc.
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APCO Argentina Inc.
/s/** Ms. Xxxxx Xxxxxx Xxxxxxxx xx Xxxxx Companc
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Ms. Xxxxx Xxxxxx Xxxxxxxx xx Xxxxx Companc
/s/** Sudacia S.A.
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Sudacia S.A.
The Spouse of Ms. XXXXX XXXXXX XXXXXXXX XX XXXXX COMPANC expresses hereunder his
consent to the execution of this Agreement as required by Section 1277 of
Argentina's Civil Code:
/s/** Ms. Xxxxx Xxxxxx Xxxxxxxx xx Xxxxx Companc
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Ms. Xxxxx Xxxxxx Xxxxxxxx xx Xxxxx Companc
* By:/s/ Xxxxxx Xxxxx
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Xxxxx Xxxxx, President and C.O.O.
** By: /s/ Xxxxx Xxxxx Companc and Xxxx Xxxxx Companc
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Xxxxx Xxxxx Companc and Xxxx Xxxxx Companc, Attorneys in-fact
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