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AGREEMENT AND PLAN OF MERGER
AMONG
PETROFINA S.A.,
PETROFINA DELAWARE, INCORPORATED,
NEW FINA, INC.
AND
FINA, INC.
Dated as of February 17, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
THE MERGER; CLOSING......................................................................................2
1.1 The Merger.............................................................................2
1.2 Effective Time.........................................................................2
1.3 Time and Place of Closing..............................................................2
1.4 Effect of the Merger...................................................................2
ARTICLE II
THE SURVIVING CORPORATION................................................................................2
2.1 Certificate of Incorporation. ........................................................2
2.2 By-laws. ..............................................................................3
2.3 Directors and Officers.................................................................3
ARTICLE III
CONVERSION OF SECURITIES; EXCHANGE.......................................................................3
3.1 Conversion of Securities...............................................................3
3.2 Mergeco Common Shares..................................................................4
3.3 Stock Options. .......................................................................4
3.4 Dissenting Shares. ...................................................................4
3.5 Exchange of Certificates...............................................................5
3.6 No Liability...........................................................................6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................7
4.1 Organization...........................................................................7
4.2 Capitalization.........................................................................7
4.3 Authorization of this Agreement; Recommendation of Merger..............................8
4.4 Governmental Filings; No Conflicts.....................................................8
4.5 Disclosure and Financial Statements; No Undisclosed Liabilities........................9
4.6 Vote Required.........................................................................10
4.7 Opinion of Financial Advisor..........................................................10
4.8 Finders and Investment Bankers........................................................10
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING MERGECO........................................................10
5.1 Organization..........................................................................10
5.2 Capitalization........................................................................10
5.3 Authorization of this Agreement.......................................................11
5.4 Governmental Filings; No Violations...................................................11
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES REGARDING PDI............................................................12
6.1 Organization..........................................................................12
6.2 Capitalization........................................................................12
6.3 Authorization of this Agreement.......................................................12
6.4 Governmental Filings; No Violations...................................................12
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PARENT................................................................13
7.1 Organization..........................................................................13
7.2 Capitalization........................................................................13
7.3 Subsidiaries..........................................................................14
7.4 Authorization of this Agreement.......................................................14
7.5 Governmental Filings; No Violations...................................................14
7.6 Disclosure and Financial Statements; No Undisclosed Liabilities.......................15
7.7 Financial Ability to Perform..........................................................16
7.8 Finders and Investment Bankers........................................................16
7.9 No Foreign Withholding................................................................16
ARTICLE VIII
COVENANTS...............................................................................................16
8.1 Conduct of the Business of the Company. ..............................................16
8.2 Activities of Mergeco.................................................................17
8.3 Stockholders' Meeting.................................................................17
8.4 SEC Filings; Registration Statement...................................................17
8.5 Filings, Other Action.................................................................18
8.6 Public Announcements..................................................................18
8.7 NYSE Listing..........................................................................19
8.8 Warrant Agreement.....................................................................19
8.9 Further Action........................................................................19
8.10 Directors' and Officers' Indemnification and Insurance................................19
8.11 Transfer Taxes........................................................................20
8.12 DOL Application.......................................................................21
ARTICLE IX
CLOSING CONDITIONS......................................................................................21
9.1 Conditions to the Obligations of Each Party...........................................21
9.2 Conditions to the Obligations of Parent, PDI and Mergeco..............................21
9.3 Conditions to the Obligations of the Company..........................................22
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ARTICLE X
TERMINATION AND ABANDONMENT.............................................................................23
10.1 Termination...........................................................................23
10.2 Procedure and Effect of Termination...................................................23
ARTICLE XI
MISCELLANEOUS...........................................................................................24
11.1 Amendment and Modification............................................................24
11.2 Waiver of Compliance; Consents........................................................24
11.3 Non-Survival of Representations, Warranties and Agreements............................24
11.4 Notices...............................................................................25
11.5 Assignment; Parties in Interest.......................................................26
11.6 Expenses..............................................................................26
11.7 Specific Performance..................................................................26
11.8 Governing Law.........................................................................26
11.9 Counterparts..........................................................................26
11.10 Interpretation........................................................................26
11.11 Entire Agreement......................................................................27
INDEX OF DEFINED TERMS...........................................................................................29
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of February 17, 1998, among (i)
PetroFina S.A., a societe anonyme/naamloze vennootschap organized under the laws
of Belgium ("Parent"); (ii) New Fina, Inc., a Delaware corporation and an
indirect, wholly-owned subsidiary of Parent ("Mergeco"); (iii) Petrofina
Delaware, Incorporated, a Delaware corporation and an indirect, wholly-owned
subsidiary of Parent ("PDI"); and (iv) Fina, Inc., a Delaware corporation (the
"Company").
WHEREAS, Parent owns all of the capital stock of American Petrofina
Holding Company, a Delaware corporation ("APHC"), which owns all of the capital
stock of PDI (each of PDI and APHC are referred to hereinafter as a "Parent
Subsidiary," and together as the "Parent Subsidiaries"); and PDI owns an
aggregate of approximately 85% of the shares of Class A common stock, par value
$0.50 per share, and 100% of the shares of Class B common stock, par value $0.50
per share (collectively, the "Common Shares") of the Company;
WHEREAS, Parent has proposed to the Board of Directors of the Company
that Parent acquire through APHC and PDI the Common Shares not owned by PDI or
any other affiliate of Parent (the "Public Shares" and the holders thereof being
referred to as the "Public Shareholders");
WHEREAS, Parent desires to contribute the interest that it acquires in
the Public Shares to APHC and to cause APHC, in turn, to contribute such
interest to PDI;
WHEREAS, the Board of Directors of each of Parent and Mergeco believes
it is in the best interest of each of Parent and Mergeco and their respective
shareholders, and the Board of Directors of the Company believes it is in the
best interest of the Company and its shareholders, to consummate the merger of
Mergeco with and into the Company (the "Merger"), upon the terms and subject to
the conditions set forth in this Agreement;
WHEREAS, a Special Committee of the Board of Directors of the Company
(the "Special Committee"), has (i) determined that the Merger is fair to and in
the best interests of the Public Shareholders and (ii) recommended the approval
of this Agreement to the Board of Directors of the Company and the adoption of
this Agreement to the Public Shareholders; and
WHEREAS, the Boards of Directors of Parent, PDI, Mergeco and the
Company have approved this Agreement and approved the Merger upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements herein contained, and intending to be
legally bound hereby, the parties agree as follows:
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ARTICLE I
THE MERGER; CLOSING
1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the General Corporation Law of
the State of Delaware (the "Delaware Corporation Law" or "DGCL"), at the
Effective Time (as hereinafter defined), Mergeco shall be merged with and into
the Company. As a result of the Merger, the separate corporate existence of
Mergeco shall cease and the Company shall continue as the surviving corporation
of the Merger (the "Surviving Corporation").
1.2 Effective Time. As promptly as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
IX, but in no event later than the Closing, the parties hereto shall cause the
Merger to be consummated by filing this Agreement or a certificate of merger or
certificate of ownership and merger (in either case, the "Certificate of
Merger") with the Secretary of State of the State of Delaware, in such form as
is required by, and executed in accordance with the relevant provisions of, the
Delaware Corporation Law and do any and all other lawful things necessary to
cause the Merger to become effective (the date and time of such filing being the
"Effective Time").
1.3 Time and Place of Closing. The closing of the Merger (the
"Closing") shall take place at the offices of Xxxxxx, Xxxxxx & Xxxxxxxxx, 0000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other place as the parties shall
agree, as soon as practicable following satisfaction or waiver of the conditions
set forth in Article IX. The date on which the Closing actually occurs is herein
referred to as the "Closing Date."
1.4 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the Delaware
Corporation Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of the Company and Mergeco shall vest in the Surviving Corporation,
and all debts, liabilities, obligations, restrictions, disabilities and duties
of the Company and Mergeco shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Corporation.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation. At the Effective Time, the
Certificate of Incorporation of the Company shall be amended to read in its
entirety as the Certificate of Incorporation of Mergeco previously delivered to
the Company until thereafter amended as provided by the Delaware Corporation
Law; provided, however, that, at the Effective Time, Article I of the
Certificate of Incorporation of the Surviving Corporation shall be amended to
read as follows: "The name of the corporation is Fina, Inc."
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2.2 By-laws. At the Effective Time, the By-laws of Mergeco
previously delivered to the Company shall be the By-laws of the Surviving
Corporation until thereafter amended as provided by the Delaware Corporation
Law, the Certificate of Incorporation of the Surviving Corporation and such
By-laws.
2.3 Directors and Officers. The directors of Mergeco immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
ARTICLE III
CONVERSION OF SECURITIES; EXCHANGE
3.1 Conversion of Securities.
(a) Each Common Share issued and outstanding immediately
prior to the Effective Time (other than any Common Shares to be canceled
pursuant to Section 3.1(b) and any Dissenting Shares (as hereinafter defined)),
by virtue of the Merger and without any action on the part of the holder
thereof, shall be converted as of the Effective Time into the right to receive
(i) $60.00 in cash (the "Cash Consideration") and (ii) one warrant (a "Parent
Warrant") to purchase nine-tenths (0.9) of one American Depositary Share (a
"Parent ADS") (subject to adjustment from and after the date hereof as provided
in the Warrant Agreement), evidenced by an American Depositary Receipt (an
"ADR"), each Parent ADS representing one-tenth (0.1) of one ordinary voting
share, without nominal value, of Parent (each a "Parent Share"), with such
Parent Warrant to be substantially in the form annexed to the form of Warrant
Agreement (the "Warrant Agreement") attached hereto as Exhibit A and to have an
exercise price of $42.25 per Parent ADS (subject to adjustment as provided in
the Warrant Agreement) (the "Warrant Consideration"). The Cash Consideration
shall be payable without interest thereon, and the Cash Consideration and the
Warrant Consideration (collectively, the "Merger Consideration") shall be
payable to the holder of such Common Shares upon surrender of the certificate
representing such Common Shares.
(b) Each Common Share held in the treasury of the Company
and each Common Share issued and outstanding immediately prior to the Effective
Time which is then owned beneficially or of record by PDI, Parent or any direct
or indirect wholly-owned subsidiary of Parent shall, by virtue of the Merger and
without any action on the part of the holder thereof, be canceled and retired
and cease to exist, without any conversion thereof and no payment or
distribution shall be made with respect thereto.
(c) Subject to Section 3.4, at the Effective Time the
holders of certificates (the "Certificates") representing Common Shares shall
cease to have any rights as shareholders of the
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Company, except the right to receive the Merger Consideration specified in
Section 3.1(a) upon the surrender of the Certificates in accordance with Section
3.5 subject, however, to the Surviving Corporation's obligation to pay any
dividends with a record date prior to the Effective Time which have been
declared by the Company prior to the Effective Time and which remain unpaid at
the Effective Time.
3.2 Mergeco Common Shares. Each share of common stock, par value
$0.01 per share, of Mergeco issued and outstanding immediately prior to the
Effective Time (the "Mergeco Common Shares") shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and
exchangeable for one fully paid and nonassessable common share, par value $0.01
per share ("Surviving Corporation Common Shares"), of the Surviving Corporation.
3.3 Stock Options. Immediately prior to the Effective Time, the
Company shall adopt resolutions and take all other actions as may be necessary
so that each outstanding Company Option (as defined in Section 4.2) whether or
not then exercisable, shall be canceled by the Company immediately prior to the
Effective Time, and each holder for each canceled Company Option (each, a
"Canceled Option") shall be entitled to receive, as soon as practicable after
the Effective Time, for each Canceled Option (i) an amount in cash equal to the
product of (a) the total number of Common Shares previously subject to the
Canceled Option and (b) the excess, if any, of the amount of Cash Consideration
over the exercise price per Common Share previously subject to such Canceled
Option, and (ii) a number of Parent Warrants equal to the total number of Common
Shares previously subject to such Canceled Option.
3.4 Dissenting Shares. Notwithstanding anything in this Agreement
to the contrary, if the holder of any Common Share shall have complied with the
provisions of Section 262 of the Delaware Corporation Law as to appraisal rights
with regard to that Common Share (a "Dissenting Share"), no such Dissenting
Share shall be deemed converted into and to represent the right to receive
Merger Consideration hereunder; and the holders of Dissenting Shares, if any,
shall be entitled to payment, solely from the Surviving Corporation, of the
appraised value of such Dissenting Shares to the extent permitted by and in
accordance with the provisions of Section 262 of the Delaware Corporation Law;
provided, however, that (i) if any holder of Dissenting Shares shall, under the
circumstances permitted by the Delaware Corporation Law, subsequently deliver a
written withdrawal of his or her demand for appraisal of such Dissenting Shares,
or (ii) if any holder fails to establish his or her entitlement to rights to
payment as provided in such Section 262, or (iii) if neither any holder of
Dissenting Shares nor the Surviving Corporation has filed a petition demanding a
determination of the value of all Dissenting Shares within the time provided in
such Section 262, such holder or holders (as the case may be) shall forfeit such
right to payment for such Dissenting Shares pursuant to such Section 262, and
the Common Shares of such holder or holders shall be deemed to be converted as
of the Effective Time into the right to receive the Merger Consideration in
accordance with the terms hereof. The Company shall give Parent (i) prompt
notice of any written demands for appraisal of any Common Shares, attempted
withdrawals of such demands, and any other instruments served
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pursuant to applicable law received by the Company relating to stockholders'
rights of appraisal and (ii) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under the Delaware Corporation
Law. The Company shall not, except with the prior written consent of Parent,
voluntarily make any payment with respect to any demands for appraisals of
Common Shares, offer to settle any such demands or approve any withdrawal of any
such demands.
3.5 Exchange of Certificates.
(a) As soon as practicable after the execution and delivery
of this Agreement and, in any event, not less than five Trading Days prior to
the mailing to holders of Common Shares of the Registration Statement (as
defined in Section 8.4), Parent shall designate a bank or trust company (or such
other person or persons as shall be reasonably acceptable to Parent and the
Company) to act as exchange agent (the "Exchange Agent") in effecting the
exchange of Certificates that, prior to the Effective Time, represented Common
Shares (other than Certificates representing Common Shares to be canceled
pursuant to Section 3.1(b) or Dissenting Shares) for Merger Consideration
pursuant to Section 3.1(a) hereof. Promptly after the Effective Time, the
Surviving Corporation shall cause to be mailed to each person who was, at the
Effective Time, a holder of record of Common Shares entitled to receive the
Merger Consideration pursuant to Section 3.1(a) a form of letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon proper delivery of such Certificates
to the Exchange Agent) and instructions for use in effecting the surrender of
the Certificates pursuant to such letter of transmittal. Upon the surrender of
each such Certificate, together with such letter of transmittal duly completed
and validly executed in accordance with the instructions thereto, the Exchange
Agent shall pay the holder of such Certificate the Merger Consideration
multiplied by the number of Common Shares formerly represented by such
Certificate in exchange therefor, and such Certificate shall forthwith be
canceled. Until so surrendered and exchanged, each such Certificate (other than
Certificates representing Dissenting Shares or Common Shares to be canceled in
accordance with Section 3.1(b)) shall represent solely the right to receive
Merger Consideration. In the event any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
Parent, the posting by such person of a bond in customary form and amount as
indemnity against any claim that may be made against it with respect to such
Certificate, the Exchange Agent will issue in exchange for such lost, stolen or
destroyed Certificate the Merger Consideration, without any interest or
dividends or other payments thereon, otherwise deliverable upon due surrender of
any such Certificate pursuant to this Agreement.
(b) As of or promptly after the Effective Time, Parent shall
deposit the Warrant Consideration and deposit or cause to be deposited the Cash
Consideration, in trust with the Exchange Agent, for the benefit of the holders
of Common Shares, for exchange in accordance with this Article III.
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(c) The cash portion of the aggregate Merger Consideration
shall be invested by the Exchange Agent, as directed by and for the benefit of
the Surviving Corporation, provided that such investments shall be limited to
direct obligations of the United States of America, obligations for which the
full faith and credit of the United States of America is pledged to provide for
the payment of principal and interest, commercial paper rated of the highest
quality by Xxxxx'x Investors Service, Inc. ("Moody's") or Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc. ("S&P"), and certificates of
deposit issued by a commercial bank whose long-term debt obligations are rated
at least A2 by Moody's or at least A by S&P, in each case having a maturity not
in excess of one year.
(d) Promptly following the date which is six months after
the Effective Time, the Exchange Agent shall deliver to the Surviving
Corporation all cash, Common Shares, Parent Warrants, Certificates and other
documents in its possession relating to the transactions described in this
Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each
holder of a Certificate may surrender such Certificate to the Surviving
Corporation and (subject to applicable abandoned property, escheat and similar
laws and, in the case of Dissenting Shares, subject to applicable law) receive
in exchange therefor the applicable Merger Consideration, without any interest
or dividends or other payments thereon.
(e) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of Common Shares. If,
after the Effective Time, Certificates formerly representing Common Shares are
presented to the Surviving Corporation or the Exchange Agent, they shall be
canceled and (subject to applicable abandoned property, escheat and similar laws
and, in the case of Dissenting Shares, subject to applicable law) exchanged for
Merger Consideration, as provided in this Article III.
(f) Subject to and without derogation of the obligations of
Parent under Section 8 of the Warrant Agreement, the Surviving Corporation and
the Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
Common Shares and/or Company Options such amounts that the Surviving Corporation
or the Exchange Agent is required to deduct and withhold with respect to the
making of such payment under the United States Internal Revenue Code of 1986, as
amended (the "Code"), the rules and regulations promulgated thereunder or any
provision of state, or local or foreign tax law. To the extent there is
withholding imposed on the Merger Consideration, the full amount required to be
withheld shall be satisfied from the Cash Consideration. To the extent that
amounts are so withheld by the Surviving Corporation or the Exchange Agent, such
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the Common Shares and/or Company Options in respect of which
such deduction and withholding was made by the Surviving Corporation or the
Exchange Agent.
3.6 No Liability. Neither Parent nor the Surviving Corporation
shall be liable to any holder of Common Shares for any Merger Consideration in
respect of such shares (or dividends
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or distributions with respect thereto) delivered to a public official pursuant
to any applicable abandoned property, escheat or similar law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Mergeco as follows:
4.1 Organization. Each of the Company and its subsidiaries (each,
a "Company Subsidiary") is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and authority
would not, individually or in the aggregate, have, or reasonably be expected to
have, a material adverse effect on the business, financial condition,
properties, or results of operations of the Company and its subsidiaries taken
as a whole (a "Company Material Adverse Effect").
4.2 Capitalization. The authorized capital stock of the Company
consists of (i) 40,000,000 Common Shares divided into two classes of 38,000,000
Class A shares and 2,000,000 Class B shares, of which, on December 31, 1997,
there were 29,221,972 Class A shares issued and outstanding and 2,000,000 Class
B shares issued and outstanding and (ii) 4,000,000 shares of preferred stock,
par value $1.00 per share, of which, on December 31, 1997, there were no
preferred shares issued and outstanding. Except as set forth above, there are no
shares of capital stock of the Company authorized or, as of the date hereof,
issued or outstanding. All issued and outstanding Common Shares are duly
authorized, validly issued, fully paid and nonassessable. Each of the Company's
subsidiaries is listed in the Company's Annual Report on Form 10-K for the
fiscal year ending December 31, 1996 (the "1996 Form 10-K"), and except, as and
to the extent set forth in the 1996 Form 10-K, the Company owns directly or
indirectly all of the issued and outstanding capital stock of each of the
Company Subsidiaries, free and clear of all liens, pledges, security interests,
claims or other encumbrances. Except for options to purchase 32,400 Common
Shares issued pursuant to the Company's Employee Non-Qualified Stock Option Plan
(the "Plan"), there are not now, and, at the Effective Time there will not be,
any existing stock option or similar plans, or options, warrants, calls,
subscriptions, preemptive rights or other agreements or commitments whatsoever
obligating the Company or any Company Subsidiary to issue, transfer, deliver or
sell or cause to be issued, transferred, delivered or sold any additional shares
of capital stock of the Company or any Company Subsidiary, or obligating the
Company or any Company Subsidiary to grant, extend or enter into any such
agreement or commitment. (The options outstanding under the Plan are hereinafter
referred to as a "Company Option" and collectively, the "Company Options.")
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4.3 Authorization of this Agreement; Recommendation of Merger.
(a) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized and approved by the Company's Board of Directors and, except
for the adoption of this Agreement by the stockholders of the Company, no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by the Company, and subject only to
adoption hereof by its stockholders (and assuming the due authorization,
execution and delivery hereof by Parent and Mergeco), this Agreement constitutes
a valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(b) The Board of Directors of the Company (at a meeting duly
noticed, called and held on February 17, 1998 at which a quorum was present) has
determined that the Merger is fair to and in the best interests of the
stockholders of the Company and has resolved to recommend approval of the Merger
and adoption of this Agreement by the stockholders of the Company.
(c) At a meeting duly noticed, called and held on February
17, 1998, the Special Committee unanimously determined that the Merger is fair
to and in the best interests of the Public Shareholders, and has recommended the
approval of this Agreement to the Board of Directors of the Company and the
adoption of this Agreement to the Public Shareholders.
4.4 Governmental Filings; No Conflicts.
(a) Except for (i) filings required by the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Securities Act of 1933, as amended (the "Securities Act"), (ii)
the filing and recordation of appropriate merger documents as required by the
DGCL and, if applicable, the laws of other states in which the Company is
qualified to do business, (iii) filings under securities or blue sky laws or
takeover statutes of the various states, (iv) the listing requirements of the
American Stock Exchange and (v) filings in connection with any applicable
transfer or other taxes in any applicable jurisdiction, no filing with, and no
permit, authorization, consent or approval of, any public body or authority is
necessary for the consummation by the Company of the transactions contemplated
by this Agreement, the failure to make or obtain which would, individually or in
the aggregate, have a Company Material Adverse Effect or materially adversely
affect the ability of the Company to perform its obligations hereunder or to
consummate the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor compliance by the
Company with any of the provisions hereof, will (i) conflict with or result in
any violation of any provision of
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the Certificate of Incorporation or By-Laws of the Company, (ii) result in a
violation or breach of, or constitute a default (or give rise to any right of
termination, cancellation or acceleration) under, any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to which the
Company or any Company Subsidiary is a party or by which any of them or any or
their properties or assets is bound or (iii) assuming the truth of the
representations and warranties of Parent and Mergeco contained herein and their
compliance with all agreements contained herein and assuming the due making or
obtaining of all filings, permits, authorizations, consents and approvals
referred to in the preceding sentence, violate any statute, rule, regulation,
order, injunction, writ or decree of any public body or authority by which the
Company or any Company Subsidiary or any of their respective assets or
properties is bound, excluding from the foregoing clauses (ii) and (iii)
violations, breaches, rights or defaults which, would not individually or in the
aggregate, have a Company Material Adverse Effect or materially adversely affect
the Company's ability perform its obligations hereunder or to consummate the
transactions contemplated hereby.
4.5 Disclosure and Financial Statements; No Undisclosed
Liabilities.
(a) The Company has filed all forms, reports and documents
with the Securities and Exchange Commission (the "SEC") since January 1, 1995,
required to be filed by it pursuant to the Securities Act and the Exchange Act
and the rules and regulations promulgated thereunder (collectively, the "Company
Disclosure Statements"), all of which have complied in all material respects
with all applicable requirements of the Securities Act and the Exchange Act and
the rules and regulations promulgated thereunder. As of the date of this
Agreement, none of such Company Disclosure Statements, at the time filed,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) As of the date of this Agreement, the consolidated
balance sheets and the related statements of consolidated income, consolidated
cash flows and consolidated retained earnings (including the notes and schedules
thereto) of the Company and its consolidated subsidiaries contained or
incorporated by reference in the Company Disclosure Statements have been
prepared from, and are in accordance with, the books and records of the Company
and its consolidated subsidiaries, comply in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, and present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of their respective
dates, and the consolidated results of their operations and their cash flows for
the periods presented therein, in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis, except as
otherwise noted therein, and subject in the case of quarterly financial
statements to normal year-end audit adjustments, and except that the quarterly
financial statements do not contain all of the footnote disclosures required by
GAAP.
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(c) As of the date of this Agreement, there is no liability
of the Company or any Company Subsidiary of any nature, whether absolute,
accrued, contingent or otherwise, which, individually or in the aggregate, would
have a Company Material Adverse Effect other than as disclosed in the Company
Disclosure Statements.
4.6 Vote Required. The affirmative vote of the holders of a
majority of the outstanding Common Shares is the only vote of the holders of any
class or series of capital stock of the Company necessary to adopt the Merger
Agreement under the DGCL.
4.7 Opinion of Financial Advisor. The Special Committee has
received the opinion of Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs") dated February
17, 1998 that, as of the date of such opinion, the Merger Consideration to be
received by the Public Shareholders pursuant to this Agreement is fair to the
Public Shareholders from a financial point of view.
4.8 Finders and Investment Bankers. No broker, investment banker
or other person is entitled to any broker's or finder's fee or similar
compensation in connection with this Agreement or the Merger based upon
arrangements made by the Company, except for Xxxxxxx Xxxxx whose fees shall be
paid by the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING MERGECO
Each of Parent and Mergeco represents and warrants to the Company as
follows:
5.1 Organization. Mergeco is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Mergeco
was formed solely for the purpose of engaging in the transactions contemplated
by this Agreement. As of the date hereof and the Effective Time, except for
obligations or liabilities incurred in connection with its incorporation or
organization and the transactions contemplated by this Agreement and, except for
this Agreement and any other agreements or arrangements contemplated by this
Agreement or in furtherance of the transactions contemplated hereby, Mergeco has
not and will not have incurred, directly or indirectly, through any subsidiary
or affiliate, any obligations or liabilities or engaged in any business
activities of any type or kind whatsoever or entered into any agreements or
arrangements with any person.
5.2 Capitalization. The authorized capital stock of Mergeco on
February 17, 1998 consisted of 0000 Xxxxxxx Xxxxxx Shares, of which there were
10 shares issued and outstanding, fully paid and nonassessable and owned by PDI
free and clear of all liens, claims and encumbrances. All of the Mergeco Common
Shares are entitled to vote on matters submitted to the stockholders of Mergeco.
Except as set forth above, there are no shares of capital stock of Mergeco
authorized, issued or outstanding. There are not now, and, at the Effective Time
there will not be, any existing stock option or similar plans or options,
warrants, calls, subscriptions, preemptive rights or other rights or other
agreements or commitments whatsoever obligating
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Mergeco or any of its subsidiaries to issue, transfer, deliver or sell or cause
to be issued, transferred, delivered or sold any additional shares of capital
stock of Mergeco, or obligating Mergeco to grant, extend or enter into any such
agreement or commitment.
5.3 Authorization of this Agreement. Mergeco has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by the Board of Directors of
Mergeco and by the shareholders of Mergeco, and no other corporate proceedings
on the part of Mergeco are necessary to authorize this Agreement or consummate
the transactions contemplated hereby (other than, with respect to the Merger,
the filing and recordation of appropriate merger documents as required by
Delaware Corporation Law). This Agreement has been duly and validly executed and
delivered by Mergeco and (assuming the due authorization, execution and delivery
hereof by the Company) constitutes a valid and binding agreement of Mergeco,
enforceable against Mergeco in accordance with its terms.
5.4 Governmental Filings; No Violations.
(a) Except for (i) filings required by the applicable
requirements of the Exchange Act and the Securities Act, (ii) the filing and
recordation of appropriate merger documents as required by the DGCL, (iii)
filings under securities or blue sky laws or takeover statutes of the various
states, and (iv) filings in connection with any applicable transfer or other
taxes in any applicable jurisdiction, no filing with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
for the consummation by Mergeco of the transactions contemplated by this
Agreement, the failure to make or obtain which would, individually or in the
aggregate, materially adversely affect the ability of Mergeco to perform its
obligations hereunder or to consummate the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor compliance by
Mergeco with any of the provisions hereof, will (i) conflict with or result in
any violation of any provision of the Certificate of Incorporation or By-Laws of
Mergeco, (ii) result in a violation or breach of, or constitute a default (or
give rise to any right of termination, cancellation or acceleration) under, any
note, bond, mortgage, indenture, license, agreement or other instrument or
obligation to which Mergeco is a party or by which it or any of its properties
or assets is bound or (iii) assuming the truth of the representations and
warranties of the Company contained herein and its compliance with all
agreements contained herein and assuming the due making or obtaining of all
filings, permits, authorizations, consents and approvals referred to in the
preceding sentence, violate any statute, rule, regulation, order, injunction,
writ or decree of any public body or authority by which Mergeco or any of its
respective assets or properties is bound, excluding from the foregoing clauses
(ii) and (iii) violations, breaches, rights or defaults which would not,
individually or in the aggregate, materially adversely affect Mergeco's ability
perform its obligations hereunder or to consummate the transactions contemplated
hereby.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES REGARDING PDI
Each of Parent and PDI represents and warrants to the Company as
follows:
6.1 Organization. PDI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as now being conducted, except where the
failure to be so organized, existing and in good standing or to have such power
and authority would not, individually or in the aggregate, have, or reasonably
be executed to have, a material adverse effect on the business, financial
condition, properties or results of operations of Parent and its subsidiaries
taken as a whole (a "Parent Material Adverse Effect").
6.2 Capitalization. The authorized capital stock of PDI on
December 31, 1997 consisted of 250 shares of Class A Common Stock, par value
$1.00 and 750 shares of Class B Common Stock, par value $1.00 (collectively, the
"PDI Shares"), of which there were 1,000 shares issued and outstanding, fully
paid and nonassessable and owned by APHC free and clear of all liens, claims and
encumbrances. All of the PDI Shares are entitled to vote on matters submitted to
the shareholders of PDI. Except as set forth above, there are no shares of
capital stock of PDI authorized, issued or outstanding. There are not now, and,
at the Effective Time there will not be, any existing stock option or similar
plans or options, warrants, calls, subscriptions, preemptive rights or other
rights or other agreements or commitment whatsoever obligating PDI or any of its
subsidiaries to issue, transfer, deliver or sell or cause to be issued,
transferred, delivered or sold any additional shares of capital stock of PDI, or
obligating PDI to grant, extend or enter into any such agreement or commitment.
6.3 Authorization of this Agreement. PDI has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by the Board of Directors of PDI,
and no other corporate proceedings on the part of PDI are necessary to authorize
this Agreement or consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by PDI and (assuming
the due authorization, execution and delivery hereof by the Company) constitutes
a valid and binding agreement of PDI, enforceable against PDI in accordance with
its terms.
6.4 Governmental Filings; No Violations.
(a) Except for (i) filings required by the applicable
requirements of the Exchange Act and the Securities Act, (ii) the filing and
recordation of appropriate merger documents as required by the DGCL and, if
applicable, the laws of other states in which PDI is
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qualified to do business, (iii) filings under securities or blue sky laws or
takeover statutes of the various states, and (iv) filings in connection with any
applicable transfer or other taxes in any applicable jurisdiction, no filing
with, and no permit, authorization, consent or approval of, any public body or
authority is necessary for the consummation by PDI of the transactions
contemplated by this Agreement, the failure to make or obtain which would,
individually or in the aggregate, materially adversely affect the ability of PDI
to perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor compliance by PDI
with any of the provisions hereof, will (i) conflict with or result in any
violation of any provision of the Certificate of Incorporation or By-Laws of
PDI, (ii) result in a violation or breach of, or constitute a default (or give
rise to any right of termination, cancellation or acceleration) under, any note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which PDI is a party or by which it or any or its properties or assets is
bound or (iii) assuming the truth of the representations and warranties of the
Company contained herein and its compliance with all agreements contained herein
and assuming the due making or obtaining of all filings, permits,
authorizations, consents and approvals referred to in the preceding sentence,
violate any statute, rule, regulation, order, injunction, writ or decree of any
public body or authority by which PDI or any of its respective assets or
properties is bound, excluding from the foregoing clauses (ii) and (iii)
violations, breaches, rights or defaults which, would not individually or in the
aggregate, materially adversely affect PDI's ability perform its obligations
hereunder or to consummate the transactions contemplated hereby.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as follows:
7.1 Organization. Parent is a societe anonyme/naamloze
vennootschap duly organized, validly existing and in good standing under the
laws of the Kingdom of Belgium and has all requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as now being conducted, except where the failure to be so organized, existing
and in good standing or to have such power and authority would not, individually
or in the aggregate, have a Parent Material Adverse Effect.
7.2 Capitalization. The subscribed capital of Parent is
43,605,279,966 Belgian Francs. As of December 31, 1997, there were 23,420,432,
ordinary voting shares, without nominal value, issued and outstanding. All such
issued and outstanding Parent Shares are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights (other than the preferential
subscription rights described in Parent's Registration Statement on Form 20-F
filed with the SEC on August 25, 1997 (File No. 1-14672)). Since such date, no
additional shares of capital stock of Parent have been issued. Parent has no
outstanding bonds, debentures, notes or
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other obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of Parent on any matter. Except as contemplated by this
Agreement and except for warrants to purchase 150,000 Parent Shares issued to
Parent employees, there are not at the date of this Agreement any existing
options, warrants, calls, subscriptions, convertible securities, or other
rights, agreements or commitments which obligate Parent or any Parent Subsidiary
to issue, transfer, deliver or sell any shares of capital stock of Parent or any
Parent Subsidiary, or obligating Parent or any Parent Subsidiary to grant,
extend or enter into any such agreement or commitment.
7.3 Subsidiaries. Each of the outstanding shares of capital stock
of each Parent Subsidiary is duly authorized, validly issued, fully paid and
nonassessable. Each of the outstanding shares of capital stock of each Parent
Subsidiary is owned, directly or indirectly, by Parent free and clear of all
liens, pledges, security interests, claims or other encumbrances other than
liens imposed by local law which are not material.
7.4 Authorization of this Agreement. Parent has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by the Board of Directors of
Parent, and no other corporate proceedings on the part of Parent are necessary
to authorize this Agreement or consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Parent and,
constitutes a valid and binding agreement of Parent, enforceable against the
Parent in accordance with its terms.
7.5 Governmental Filings; No Violations.
(a) Except for (i) filings required by the applicable
requirements of the Exchange Act and the Securities Act, (ii) the filing and
recordation of appropriate merger documents as required by the DGCL, (iii)
filings under the securities or blue sky laws or takeover statutes of the
various states, (iv) filings required by the Belgian Commission on Banking and
Finance or the Brussels Stock Exchange, and (v) filings in connection with any
applicable transfer or other taxes in any applicable jurisdiction, no filing
with, and no permit, authorization, consent or approval of, any public body or
authority is necessary for the consummation by Parent of the transactions
contemplated by this Agreement, the failure to make or obtain which would,
individually or in the aggregate, have a Parent Material Adverse Effect or
materially adversely affect the ability of Parent to perform its obligations
hereunder or to consummate the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby nor compliance by
Parent with any of the provisions hereof will (i) conflict with or result in any
violation of any provision of the statuts/statuten of Parent (ii) result in a
violation or breach of, or constitute a default (or give rise
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to any right of termination, cancellation or acceleration) under any note, bond,
mortgage, indenture, license, agreement or other obligation to which Parent is a
party, or by which it or any of its respective properties or assets is bound, or
(iii) assuming the truth of the representations and warranties of the Company
hereunder and its compliance with all agreements contained herein and assuming
the due making or obtaining of all filings, permits, authorizations, consents
and approvals referred to in the preceding sentence, violate any statute, rule,
regulation, order, injunction, writ or decree of any public body or authority by
which Parent, or any of its respective properties or assets is bound, excluding
from the foregoing clauses (ii) and (iii) violations, breaches, rights or
defaults which, would not, individually or in the aggregate, have a Parent
Material Adverse Effect or materially adversely affect the Parent's ability to
perform its obligations hereunder or to consummate the transactions contemplated
hereby.
7.6 Disclosure and Financial Statements; No Undisclosed
Liabilities.
(a) Since September 2, 1997, Parent has filed all forms,
reports and documents with the SEC required to be filed by it pursuant to the
Securities Act and the Exchange Act, and the rules and regulations promulgated
thereunder (collectively, the "Parent Disclosure Statements"), all of which have
complied in all material respects with all applicable requirements of the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder. As of the date of this Agreement, none of such Parent Disclosure
Statements, at the time filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Prior to September 2, 1997, Parent was not
required to make filings under the Securities Act or Exchange Act, except for
filings pursuant to Rule 12g3-2(b) promulgated under the Exchange Act.
(b) As of the date of this Agreement, the consolidated
balance sheets and the related statements of consolidated income, consolidated
cash flows and consolidated retained earnings (including the notes and schedules
thereto) of Parent and its consolidated subsidiaries contained in the Parent's
Registration Statement filed on Form 20-F (File No. 1-14672), have been prepared
from, and are in accordance with, the books and records of Parent and its
consolidated subsidiaries, comply in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, and present fairly the consolidated financial position of
Parent and its consolidated subsidiaries as of their respective dates, and the
consolidated results of their operations and their cash flows for the periods
presented therein, in conformity with GAAP applied on a consistent basis, except
as otherwise noted therein.
(c) As of the date of this Agreement, there is no liability
of Parent or any subsidiary of Parent of any nature, whether absolute, accrued,
contingent or otherwise, which, individually or in the aggregate, would have a
Parent Material Adverse Effect, other than as disclosed in the Parent Disclosure
Statements.
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7.7 Financial Ability to Perform. Parent presently has, and at the
Effective Time will have, cash funds available sufficient to consummate the
transactions contemplated by this Agreement and to perform its obligations under
this Agreement.
7.8 Finders and Investment Bankers. No broker, investment banker
or other person is entitled to any broker's or finder's fee or similar
compensation in connection with this Agreement or the Merger based upon
arrangements made by Parent, except for Xxxxxx, Xxxxxxx & Co., Incorporated
whose fees shall be paid by Parent.
7.9 No Foreign Withholding. There is no law, rule or regulation of
any taxing authority or other governmental entity outside the United States that
would require Parent, the Surviving Corporation or the Exchange Agent to deduct
from or withhold any portion of the Merger Consideration.
ARTICLE VIII
COVENANTS
8.1 Conduct of the Business of the Company.
(a) Prior to the Effective Time, unless Parent shall
otherwise consent in writing (it being understood that Parent must act in good
faith whenever it withholds such consent), the Company shall, and shall cause
the Company Subsidiaries to, carry on their respective businesses only in the
ordinary course and consistent with past practice and, to the extent consistent
therewith and with the specific terms of this Agreement, use all commercially
reasonable efforts to preserve intact their current business organizations, keep
available the services of their current employees and preserve their
relationships with customers, suppliers and others having business dealings with
them.
(b) During the period from the date of this Agreement to the
Effective Time, the Company shall not declare, set aside or pay any dividend or
other distribution (whether in cash, stock or property or any combination
thereof) in respect of its capital stock, or agree to do any of the foregoing;
provided, however, that the Company shall declare and pay regular quarterly
dividends of $.80 per Common Share.
(c) Notwithstanding anything herein to the contrary, the
Board of Directors of the Company shall amend the Phantom Share Plan of the
Company (the "Phantom Plan") to (i) convert each Phantom Share (as defined in
the Phantom Plan) credited under the Phantom Plan to a cash amount equal to the
value of the Merger Consideration as of the Closing Date, as determined in good
faith by the Board of Directors of the Company, (ii) provide that future amounts
earned under the Phantom Plan shall be credited in cash instead of Phantom
Shares and (iii) provide that cash amounts credited to the accounts of
participants in the Phantom Plan shall be credited with a reasonable rate of
interest (as determined in good faith by the Board of Directors of the Company)
until distributed in accordance with the terms of the Phantom Plan.
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8.2 Activities of Mergeco. From the date of this Agreement to the
Effective Time, Mergeco will not conduct any business or engage in any
activities of any nature other than activities in connection with this Agreement
or the transactions contemplated hereby.
8.3 Stockholders' Meeting. The Company will take all action
necessary in accordance with applicable law and its Certificate of Incorporation
and By-laws to convene a meeting of its stockholders as promptly as practicable
to consider and vote upon the adoption of this Agreement. The Company shall take
all lawful action to solicit such adoption, including, without limitation,
timely mailing the Proxy Statement/Prospectus (as defined in Section 8.4). In
the Proxy Statement/Prospectus the Board of Directors of the Company and the
Special Committee shall recommend adoption of this Agreement, subject to their
respective fiduciary duties as advised by independent counsel. At such meeting,
Parent shall cause all Common Shares then owned by it and its subsidiaries
(including PDI) to be voted in favor of the adoption of this Agreement.
8.4 SEC Filings; Registration Statement.
(a) Parent, PDI, Mergeco and the Company shall timely file
with the SEC a Schedule 13E-3 (the "Schedule 13E-3") with respect to the Merger
and disseminate to Public Shareholders such information as is required by Rule
13e-3 under the Exchange Act.
(b) Parent and the Company shall cooperate and promptly
prepare and Parent shall file with the SEC as soon as practicable a Registration
Statement on Form F-4 (the "Registration Statement") under the Securities Act,
with respect to Parent Warrants issuable in the Merger and Parent Shares
represented by the Parent ADSs issuable upon exercise of the Parent Warrants, a
portion of which Registration Statement shall also serve as the proxy statement
with respect to the meeting of the stockholders of the Company in connection
with the Merger and the prospectus with respect to such Registration Statement
(the "Proxy Statement/Prospectus"). The Company shall file the Proxy
Statement/Prospectus with the SEC as soon as practicable.
(c) The respective parties will cause the Schedule 13E-3,
the Proxy Statement/Prospectus and the Registration Statement to comply as to
form in all material respects with the applicable provisions of the Securities
Act, the Exchange Act and the rules and regulations thereunder. Parent shall use
all reasonable efforts, and the Company will cooperate with Parent, to have the
Registration Statement declared effective by the SEC as promptly as practicable
and to keep the Registration Statement effective as long as is necessary to
consummate the Merger. Parent and the Company shall, as promptly as practicable,
provide copies to each other of any written comments received from the SEC with
respect to the Schedule 13E-3 and Registration Statement and advise each other
of any verbal comments with respect to the Schedule 13E-3 and Registration
Statement received from the SEC. Parent shall use its best efforts to obtain,
prior to the effective date of the Registration Statement, all
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necessary state securities law or "Blue Sky" permits or approvals required to
carry out the transactions contemplated by this Agreement and will pay all
expenses incident thereto. Parent agrees that the Proxy Statement/Prospectus and
each amendment or supplement thereto at the time of mailing thereof and at the
time of the meeting of stockholders of the Company, and the Schedule 13E-3 and
each amendment or supplement thereto, at the time it is filed and the
Registration Statement, at the time it becomes effective, will not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing shall not apply to the extent that any such untrue statements
of a material fact or omission to state a material fact was made by Parent in
reliance upon and in conformity with written information concerning the Company
furnished to Parent by the Company specifically for inclusion in the Proxy
Statement/Prospectus, Schedule 13E-3 or Registration Statement. The Company
agrees that the written information concerning the Company provided by it
specifically for inclusion in the Proxy Statement/Prospectus and each amendment
or supplement thereto, at the time of mailing thereof and at the time of the
meeting of stockholders of the Company, and the written information concerning
the Company provided by the Company specifically for inclusion in the Schedule
13E-3 and each amendment or supplement thereto, at the time it is filed, and the
written information concerning the Company provided by it specifically for
inclusion in the Registration Statement, at the time it becomes effective, will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. No
amendment or supplement to the Registration Statement will be made by Parent or
the Company without the approval of the other party. Parent will advise the
Company, promptly after it receives notice thereof, of the time when the
Registration Statement has become effective.
8.5 Filings, Other Action. Subject to the terms and conditions
herein provided, the Company and Parent shall: (a) use all reasonable efforts to
cooperate with one another in (i) determining which filings are required to be
made prior to the Effective Time, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Effective Time from
governmental or regulatory authorities of the United States, the several states
and foreign jurisdictions in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and (ii)
timely making all such filings and timely seeking all such consents, approvals,
permits or authorizations; and (b) use all reasonable efforts to take, or cause
to be taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
8.6 Public Announcements. Parent and the Company will (i) consult
with each other before issuing any press release or otherwise making any public
statements with respect to the Merger, this Agreement and the transactions
contemplated hereby and (ii) not issue any such press release or make any such
public statement prior to such consultation, except as may be required by law or
by obligations pursuant to any listing agreement with any securities exchange.
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8.7 NYSE Listing. Parent agrees that it will use its best efforts
to cause the Parent Warrants and Parent ADSs issuable upon the exercise of the
Parent Warrants to be listed on the New York Stock Exchange ("NYSE"). To the
extent that the Parent Warrants or such Parent ADSs cannot be listed on the
NYSE, Parent shall use its best efforts to cause them to be listed on the
National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ").
8.8 Warrant Agreement. Prior to the Effective Time, Parent shall
execute and deliver the Warrant Agreement and cause the Warrant Agent (as
defined in the Warrant Agreement) to execute and deliver the Warrant Agreement,
with no changes from the form attached as Exhibit A hereto that are adverse in
any material respect to the holders of Common Shares.
8.9 Further Action. Each party hereto shall, subject to the
fulfillment at or before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such further acts
and execute such documents as may be reasonably required to effect the Merger.
8.10 Directors' and Officers' Indemnification and Insurance.
(a) The By-laws of the Surviving Corporation shall contain
provisions no less favorable with respect to indemnification and exculpation
than are set forth in Article 11 of the Certificate of Incorporation of the
Company, which provisions shall not be amended, repealed or otherwise modified
for a period of six years from the Effective Time in any manner that would
affect adversely the rights thereunder of individuals who at or prior to the
Effective Time were directors, officers, employees, fiduciaries or agents of the
Company, unless such modification shall be required by law.
(b) The Company shall, to the fullest extent permitted under
applicable law and regardless of whether the Merger becomes effective, indemnify
and hold harmless, and, after the Effective Time, the Surviving Corporation
shall, to the fullest extent permitted under applicable law, indemnify and hold
harmless, each present and former director, officer, employee, fiduciary and
agent of the Company and each Subsidiary and each fiduciary and agent of each
such director and officer (collectively, the "Indemnified Parties") against all
costs and expenses (including attorneys' fees), judgments, fines, losses,
claims, damages, liabilities and settlement amounts paid in connection with any
claim, action, suit, proceeding or investigation (whether arising before or
after the Effective Time), whether civil, criminal, administrative or
investigative, arising out of or pertaining to any action or omission in their
capacity as an officer, director, employee, fiduciary or agent, whether
occurring before or after the Effective Time, until the expiration of the
statute of limitations relating thereto (and shall pay any expenses in advance
of the final disposition of such action or proceeding to each Indemnified Party
to the fullest extent permitted under Delaware Corporation Law, upon receipt
from the Indemnified Party to whom expenses are advanced of any undertaking to
repay such advances required under Delaware Corporation Law). In the event of
any such claim, action, suit, proceeding or
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investigation, (i) the Company or the Surviving Corporation, as the case may be,
shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably satisfactory to the
Company or the Surviving Corporation, promptly after statements therefor are
received and (ii) the Company and the Surviving Corporation shall cooperate in
the defense of any such matter; provided, however, that neither the Company nor
the Surviving Corporation shall be liable for any settlement effected without
its written consent (which consent shall not be unreasonably withheld); and
provided, further, that neither the Company nor the Surviving Corporation shall
be obligated pursuant to this Section 8.10 (b) to pay the fees and expenses of
more than one counsel (plus appropriate local counsel) for all Indemnified
Parties in any single action except (x) that the persons who served as directors
of the Company who were not designees of Parent shall be entitled to retain one
additional counsel (plus appropriate local counsel) to represent them at the
expense of the Company or the Surviving Corporation, and (y) to the extent that
two or more of such Indemnified Parties shall have conflicting interests in the
outcome of such action, in which case such additional counsel (including local
counsel) as may be required to avoid any such conflict or likely conflict may be
retained by the Indemnified Parties at the expense of the Company or the
Surviving Corporation; and provided further that, in the event that any claim
for indemnification is asserted or made within the period prior to the
expiration of the applicable statute of limitations, all rights to
indemnification in respect of such claim shall continue until the disposition of
such claim.
(c) The Surviving Corporation shall use its reasonable
efforts to maintain in effect for six years from the Effective Time, the current
directors' and officers' liability insurance policies maintained by the Company,
or policies of at least the same coverage containing terms and conditions which
are not materially less favorable, with respect to matters occurring prior to
the Effective Time; provided, however, that in no event shall the Surviving
Corporation be required to expend pursuant to this Section 8.10(c) more than an
amount per year equal to 200% of current annual premiums paid by the Company for
such insurance. In the event that, but for the proviso to the immediately
preceding sentence, the Surviving Corporation would be required to expend more
than 200% of current annual premiums, the Surviving Corporation shall obtain the
maximum amount of such insurance obtainable by payment of annual premiums equal
to 200% of current annual premiums.
(d) In the event the Company or the Surviving Corporation or
any of their respective successors or assigns (i) consolidates with or merges
into any other person and shall not be the continuing or surviving corporation
or entity of such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of the Company
or the Surviving Corporation, as the case may be, or at Parent's option, Parent,
shall assume the obligations set forth in this Section 8.10.
8.11 Transfer Taxes. The Surviving Corporation shall pay any
transfer taxes (including any interest and penalties thereon and additions
thereto) payable in connection with
20
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the Merger and shall be responsible for the preparation and filing of any
required tax returns, declarations, reports, schedules, terms and information
returns with respect to such taxes.
8.12 DOL Application. On or before the Closing Date, the Company
shall submit an application (the "Application") to the United States Department
of Labor (the "DOL") for exemption from the application of Section 406(a)(2) and
407(a) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to the receipt, holding, exercise and disposition of the Warrant
Consideration by the Company's Capital Accumulation Plan (the "CAP"). The
parties hereto agree not to withdraw the Application prior to a final decision
thereon by the DOL and to use their best efforts to cause the Application to be
approved by the DOL. During the pendency of the Application, one or more
fiduciaries independent of the Company and its affiliates (which shall include
participants in the CAP with respect to their own account balances) shall make
all decisions regarding the holding, disposition or exercise of the Warrant
Consideration by the CAP based solely on the best interest of participants and
beneficiaries thereunder (which participants and beneficiaries shall be intended
third part beneficiaries of this Section 8.12).
ARTICLE IX
CLOSING CONDITIONS
9.1 Conditions to the Obligations of Each Party. The respective
obligations of each party hereto to effect the Merger shall be subject to the
satisfaction or waiver, at or prior to the Effective Time, of the following
conditions:
(a) this Agreement shall have been adopted by the
affirmative vote of the holders of the requisite number of Common Shares in
accordance with the Certificate of Incorporation and By-Laws of the Company and
the DGCL;
(b) no statute, rule, regulation, temporary, preliminary or
permanent order or injunction shall have been promulgated, enacted, entered,
enforced or deemed applicable to the Merger or performance under this Agreement,
by any state, federal or foreign government or governmental authority or court
or governmental agency of competent jurisdiction and remain in effect that
prohibits the consummation of the Merger; and
(c) the Registration Statement shall have become effective
and shall be effective at the Effective Time, and no stop order suspending
effectiveness of the Registration Statement shall have been issued, and no
action, suit, proceeding or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing.
9.2 Conditions to the Obligations of Parent, PDI and Mergeco. The
obligations of Parent, PDI and Mergeco pursuant to this Agreement to consummate
the Merger are also subject to the satisfaction or waiver, at or prior to the
Effective Time, of the following additional conditions:
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26
(a) the representations and warranties of the Company
contained herein shall be true and correct in all respects (in the case of any
representation or warranty containing any materiality qualification) or in all
material respects (in the case of any representation or warranty without any
materiality qualification) as of the date of this Agreement and as of the
Closing with the same effect as though all such representations and warranties
had been made as of Closing, except (i) for any such representations and
warranties made as of a specified date, which shall be true and correct in all
respects (in the case of any representation or warranty containing any
materiality qualification) or in all material respects (in the case of any
representation or warranty without any materiality qualification) as of such
date, or (ii) as expressly contemplated by this Agreement, and Parent shall have
received from the Company's President and Chief Financial Officer an officers'
certificate to this effect; and
(b) each and all of the covenants and agreements of the
Company to be performed and complied with pursuant to this Agreement prior to
the Closing shall have been duly performed and complied with in all material
respects, and Parent shall have received from the Company's President and Chief
Financial Officer an officers' certificate to this effect.
9.3 Conditions to the Obligations of the Company. The obligation
of the Company pursuant to this Agreement to consummate the Merger is also
subject to the satisfaction or waiver, at or prior to the Effective Time, of the
following additional conditions:
(a) the representations and warranties of Parent, PDI and
Mergeco contained herein shall be true and correct in all respects (in the case
of any representation or warranty containing any materiality qualification) or
in all material respects (in the case of any representation or warranty without
any materiality qualification) as of the date of this Agreement and as of the
Closing with the same effect as though all such representations and warranties
had been made as of Closing, except (i) for any such representations and
warranties made as of a specified date, which shall be true and correct as of
such date, or (ii) as expressly contemplated by this Agreement, and the Company
shall have received from Parent, PDI and Mergeco officers' certificates to this
effect;
(b) each and all of the covenants and agreements of Parent
and Mergeco to be performed and complied with pursuant to this Agreement prior
to the Closing shall have been duly performed and complied with in all material
respects, and the Company shall have received from Parent and Mergeco officers'
certificates to this effect;
(c) the Warrant Agreement shall have been executed and
delivered;
(d) the Parent Warrants issuable to the Company's
stockholders as contemplated by this Agreement, and the Parent ADSs issuable
upon exercise of the Parent Warrants, shall have been approved for listing on
the NYSE or NASDAQ, subject to official notice of issuance; and
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(e) a Registration Statement on Form F-6 under the
Securities Act with respect to the Parent ADSs covered by the Parent Warrants
shall be effective, and no stop order suspending effectiveness of such
Registration Statement shall have been issued.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval by the
stockholders of the Company:
(a) by mutual written consent duly authorized by the Board
of Directors of Parent and the Special Committee on behalf of the Board of
Directors of the Company;
(b) by either Parent or the Special Committee on behalf of
the Company if the Effective Time shall not have occurred on or before September
30, 1998 (the "Termination Date"); provided, however, that the right to
terminate this Agreement under this Section 10.1(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Effective Time to occur on or
before such date;
(c) by either Parent or the Special Committee on behalf of
the Company, if any court of competent jurisdiction in the United States or
other governmental agency of competent jurisdiction shall have issued an order,
decree or ruling or taken any other action permanently restraining, enjoining or
otherwise prohibiting the Merger, and such order, decree, ruling or other action
shall have become final and non-appealable;
(d) by the Special Committee, on behalf of the Company, at
any time, if any of the conditions set forth in Section 9.3(a) or (b) shall not
be satisfied at such time and (i) such condition is incapable of being satisfied
prior to the Termination Date or (ii) Parent and the Parent Subsidiaries are not
using their best efforts to cure the breach resulting in such condition not
being satisfied in as timely a manner as practicable; or
(e) by Parent, at any time, if any of the conditions set
forth in Section 9.3(a) or (b) shall not be satisfied at such time and (i) such
condition is incapable of being satisfied prior to the Termination Date or (ii)
the Special Committee or the Company are not using their best efforts to cure
the breach resulting in such condition not being satisfied in as timely a manner
as practicable.
10.2 Procedure and Effect of Termination. In the event of
termination of this Agreement by either Parent or the Company pursuant to
Section 10.1, written notice thereof shall forthwith be given to the other
parties hereto, and this Agreement shall terminate and the Merger shall be
abandoned, without further action by any of the parties hereto. Mergeco and PDI
agree
23
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that any termination by Parent shall be conclusively binding upon them, whether
given expressly on their behalf or not, and the Company shall have no further
obligation with respect to them. If this Agreement is terminated pursuant to
Section 10.1, this Agreement shall forthwith become void, and there shall be no
liability on the part of any party hereto, except as set forth in Section 11.3.
Nothing herein shall relieve any party from liability for any breach hereof.
ARTICLE XI
MISCELLANEOUS
11.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
Parent, PDI, Mergeco and the Company at any time prior to the Effective Time
with respect to any of the terms contained herein; provided, that (i) after this
Agreement is adopted by the Company's stockholders pursuant to Section 8.3, no
such amendment or modification shall be made that reduces the amount or changes
the form of the Merger Consideration or otherwise materially and adversely
affects the rights of the Public Shareholders hereunder, without the further
approval of the holders of at least a majority of the outstanding Common Shares
and (ii) the approval of the Special Committee shall be required for any
amendment, modification or supplementing of this Agreement, any extension by the
Company of the time for the performance of any obligations or other acts of
Parent, PDI or Mergeco and any waiver of any of the Company's rights under this
Agreement.
11.2 Waiver of Compliance; Consents. Any failure of Parent, PDI or
Mergeco on the one hand, or the Company, on the other hand, to comply with any
obligation, covenant, agreement or condition herein may be waived by the Company
(subject to the approval of the Special Committee as set forth in Section
11.1(ii)) or Parent, respectively, only by a written instrument signed by the
party granting such waiver, but such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Any determination by
the Company as to the existence of any such failure on the part of Parent, PDI
or Mergeco shall be made by the Special Committee on behalf of the Company.
Whenever this Agreement requires or permits consent by or on behalf of any party
hereto, such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in Section 11.1(ii) and
this Section 11.2. Mergeco hereby agrees that any consent or waiver of
compliance given by Parent shall be conclusively binding upon it, whether given
expressly on its behalf or not.
11.3 Non-Survival of Representations, Warranties and Agreements.
The representations, warranties and agreements in this Agreement shall terminate
at the Effective Time or upon the termination of this Agreement pursuant to
Section 10.1, as the case may be, except that (i) the agreements set forth in
Articles III and XI and Sections 8.9, 8.10 and 8.11 shall survive the Effective
Time indefinitely and (ii) the agreements set forth in Article XI and Section
10.2 shall survive the termination of this Agreement indefinitely.
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29
11.4 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if (i) delivered personally or by
overnight courier, (ii) mailed by registered or certified mail, return receipt
requested, postage prepaid, or (iii) transmitted by telecopy, and in each case,
addressed to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice; provided that notices of a
change of address shall be effective only upon receipt thereto):
(a) if to Parent, PDI or Mergeco to
PetroFina S.A.
00 xxx xx x'Xxxxxxxxx
X-0000 Xxxxxxxx, Xxxxxxx
Telecopy: 00-0-000-0000
Attention: Secretary General
with a required copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxx
(b) if to the Company, to:
Fina, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx
with a required copy to:
Special Committee of the Board of Directors of Fina, Inc.
c/o Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000)000-0000
Attention: Xxxxx Xxxxxxxxx
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30
Any notice so addressed shall be deemed to be given (x) three business days
after being mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid and (y) upon delivery, if transmitted by hand
delivery, overnight courier or telecopy.
11.5 Assignment; Parties in Interest. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties. Except for Sections 3.3, 8.10 and 8.12, which are intended to be
for the benefit of the holders of Company Options, Indemnified Parties and the
participants and beneficiaries of the CAP, respectively, this Agreement is not
intended to confer upon any other person except the parties any rights or
remedies under or by reason of this Agreement.
11.6 Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with the Merger, this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses; provided, however, that the allocable share of each of Parent and the
Company for all expenses related to printing, filing and mailing the proxy
statement contained in the Registration Statement and all SEC and other
regulatory filing fees incurred in connection with the Schedule 13E-3 and the
Registration Statement shall be one-half.
11.7 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or equity.
11.8 Governing Law. This Agreement shall be governed by the laws of
the State of Delaware (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
11.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.10 Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, (i) the term
"person" shall mean and include an individual, a partnership, a joint venture, a
26
31
corporation, a limited, liability company, a trust, an unincorporated
organization and a government or any department or agency thereof; (ii) the
terms "affiliate" and "associate" shall have the meanings set forth in Rule
12b-2 of the General Rules and Regulations promulgated under the Exchange Act;
and (iii) the term "subsidiary" of any specified corporation shall mean any
corporation of which the outstanding securities having ordinary voting power to
elect a majority of the board of directors are directly or indirectly owned by
such specified corporation.
11.11 Entire Agreement. This Agreement, including the schedules and
exhibits hereto, embodies the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein and supersedes all
prior agreements and the understandings between the parties with respect to such
subject matter.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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32
IN WITNESS WHEREOF, Parent, PDI, Mergeco, and the Company have caused
this Agreement to be signed, by their respective duly authorized officers or
directly, as of the date first above written.
PETROFINA S.A.
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer and Managing
Director
/s/ Xxxxxx-Xxxx Delcommune
------------------------------------------
Name: Xxxxxx-Xxxx Delcommune
Title: Executive Director, Corporate
Finance - Insurance
PETROFINA DELAWARE, INCORPORATED
By: /s/ Geoffroy Petit
------------------------------------------
Name: Geoffroy Petit
Title: Vice President, Administration and
Finance
NEW FINA, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: President
FINA, INC.
By: /s/ Xxx X. Xxxxxxx
------------------------------------------
Name: Xxx X. Xxxxxxx
Title: President and Chief Executive Officer
28
33
INDEX OF DEFINED TERMS
(Not Part of This Agreement)
Location of Definition
----------------------
1996 Form 10-K..............................................................................7
ADR.........................................................................................3
APHC........................................................................................1
Application................................................................................21
Canceled Option.............................................................................4
CAP........................................................................................21
Cash Consideration..........................................................................3
Certificate of Merger.......................................................................2
Certificates................................................................................3
Closing.....................................................................................2
Closing Date................................................................................2
Code........................................................................................6
Common Shares...............................................................................1
Company.....................................................................................1
Company Disclosure Statements...............................................................9
Company Material Adverse Effect.............................................................7
Company Option..............................................................................7
Company Options.............................................................................7
Company Subsidiary..........................................................................7
Delaware Corporation Law....................................................................2
DGCL........................................................................................2
Dissenting Share............................................................................4
DOL........................................................................................21
Effective Time..............................................................................2
ERISA......................................................................................21
Exchange Act................................................................................8
Exchange Agent..............................................................................5
GAAP........................................................................................9
Xxxxxxx Xxxxx..............................................................................10
Mergeco.....................................................................................1
Mergeco Common Shares.......................................................................4
Merger......................................................................................1
Merger Consideration........................................................................3
Xxxxx'x.....................................................................................6
NASDAQ.....................................................................................19
NYSE.......................................................................................19
Parent......................................................................................1
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34
Parent ADS..................................................................................3
Parent Disclosure Statements...............................................................15
Parent Material Adverse Effect.............................................................12
Parent Share................................................................................3
Parent Subsidiaries.........................................................................1
Parent Subsidiary...........................................................................1
Parent Warrant..............................................................................3
PDI.........................................................................................1
PDI Shares.................................................................................12
Phantom Plan...............................................................................16
Plan........................................................................................7
Proxy Statement/Prospectus.................................................................17
Public Shareholders.........................................................................1
Public Shares...............................................................................1
Registration Statement.....................................................................17
S&P.........................................................................................6
Schedule 13E-3.............................................................................17
SEC.........................................................................................9
Securities Act..............................................................................8
Special Committee...........................................................................1
Surviving Corporation.......................................................................2
Surviving Corporation Common Shares.........................................................4
Termination Date...........................................................................23
Warrant Agreement...........................................................................3
Warrant Consideration.......................................................................3
30
35
EXHIBIT A
[FORM OF WARRANT AGREEMENT]
WARRANT AGREEMENT
BETWEEN
PETROFINA S.A.
AND
_______________________,
Dated as of ___________ __, 1998
36
TABLE OF CONTENTS
Page
----
Section 1. Certain Definitions...........................................................1
Section 2. Appointment of Warrant Agent..................................................2
Section 3. Form of Warrant Certificates..................................................2
Section 4. Countersignature and Registration.............................................3
Section 5. Transfer, Split Up, Combination and Exchange of Warrant
Certificates; Mutilated, Destroyed, Lost or Stolen Warrant
Certificates..................................................................3
Section 6. Exercise of PetroFina Warrants; Exercise Price; Expiration Date of
PetroFina Warrants............................................................4
Section 7. Cancellation and Destruction of Warrant Certificates..........................5
Section 8. Reservation and Availability of PetroFina Shares and PetroFina
ADSs; Listing.................................................................5
Section 9. PetroFina ADS Record Date.....................................................6
Section 10. Adjustment of Exercise Price, Number of PetroFina ADSs or
Number of PetroFina Shares....................................................6
Section 11. Certification of Adjusted Exercise Price or Number of PetroFina
ADSs.........................................................................12
Section 12. Reclassification, Consolidation, Merger, Combination, Sale or
Conveyance...................................................................12
Section 13. Fractional PetroFina Warrants and Fractional PetroFina
ADSs.........................................................................13
Section 14. Right of Action..............................................................14
Section 15. Agreement of Warrant Certificate Holders.....................................15
Section 16. Warrant Certificate Holder Not Deemed a Stockholder..........................15
i
37
Section 17. Concerning the Warrant Agent.................................................15
Section 18. Merger or Consolidation or Change of Name of Warrant Agent...................16
Section 19. Duties of Warrant Agent......................................................16
Section 20. Change of Warrant Agent......................................................18
Section 21. Issuance of New Warrant Certificates.........................................19
Section 22. Purchase of PetroFina Warrants by PetroFina..................................19
Section 23. Notice of Proposed Actions...................................................20
Section 24. Notices......................................................................20
Section 25. Supplements and Amendments...................................................21
Section 26. Successors...................................................................21
Section 27. Benefits of this Agreement...................................................21
Section 28. Governing Law................................................................21
Section 29. Counterparts.................................................................21
Section 30. Captions.....................................................................21
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WARRANT AGREEMENT
This Warrant Agreement (the "Agreement") dated as of ________
__, 1998 [the Closing Date], between PetroFina S.A., a societe anonyme/naamloze
vennootschap organized under the laws of the Kingdom of Belgium ("PetroFina"),
and ___________, a _______________, (the "Warrant Agent").
W I T N E S S E T H
WHEREAS, PetroFina has entered into an Agreement and Plan of
Merger, dated as of February 17, 1998 (the "Merger Agreement"), with Fina, Inc.,
a Delaware corporation ("Fina"), Petrofina Delaware, Inc., a Delaware
corporation and New Fina, Inc., a Delaware corporation and an indirect,
wholly-owned subsidiary of PetroFina ("Mergeco"), providing for the merger of
Mergeco into Fina pursuant to the terms of the Merger Agreement; and
WHEREAS, the Merger Agreement provides that all of the
outstanding shares of common stock, par value $.50 per share, of Fina, except as
provided in the Merger Agreement, shall be converted into, exchanged for and
represent the right to receive consideration specified in the Merger Agreement,
which consideration is to include warrants (the "PetroFina Warrants") to
purchase American Depositary Shares ("PetroFina ADSs"), each PetroFina Warrant
entitling the holder thereof to purchase nine-tenths (0.9) of one PetroFina ADS
and each PetroFina ADS representing one-tenth (0.1) of one PetroFina Share (as
defined below) upon the terms and subject to the conditions hereinafter set
forth; and
WHEREAS, PetroFina wishes the Warrant Agent to act on behalf
of PetroFina, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and exercise of PetroFina Warrants;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in New
York are authorized or obligated by law or executive order to
close.
(b) "Close of Business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a
39
Business Day it shall mean 5:00 P.M., New York City time, on
the next succeeding Business Day.
(c) "Closing Date" shall have the meaning ascribed to
it in the Merger Agreement.
(d) "Person" shall mean an individual, corporation,
association, partnership, joint venture, trust, limited
liability company, unincorporated organization, government or
political subdivision thereof or governmental agency or other
entity.
(e) "PetroFina Shares" shall mean the ordinary voting
shares, without nominal value, of PetroFina.
(f) "Trading Day" shall mean, with respect to any
security, a day on which the principal foreign or national
securities exchange on which such securities are listed or
admitted to trading is open for the transaction of business
or, if such securities are not listed or admitted to trading
on any foreign or national securities exchange, any Business
Day.
Section 2. Appointment of Warrant Agent. PetroFina hereby
appoints the Warrant Agent to act as agent for PetroFina in accordance with the
terms and conditions hereof, and the Warrant Agent hereby accepts such
appointment. PetroFina may from time to time appoint such co-Warrant Agents as
it may, in its sole discretion, deem necessary or desirable.
Section 3. Form of Warrant Certificates. The certificates
evidencing the PetroFina Warrants (the "Warrant Certificates") (together with
the form of election to purchase PetroFina ADSs and the form of assignment to be
printed on the reverse thereof) shall be in registered form only and shall be
substantially in the form of Exhibit 1 hereto and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as PetroFina may deem appropriate and as are not inconsistent
with the provisions of this Agreement and the Merger Agreement or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto, or to conform to usage. Subject to the provisions of Section 21 hereof,
each Warrant Certificate, whenever issued, shall be dated the Closing Date and
on its face shall specify the number of PetroFina Warrants evidenced by such
Warrant Certificate. As specified in such Warrant Certificate each PetroFina
Warrant shall entitle the holder thereof to purchase nine-tenths (0.9) of one
PetroFina ADS at $42.25 per PetroFina ADS (the "Exercise Price"), but the number
of such PetroFina ADSs (and any other securities or property purchasable
together therewith or in lieu thereof as set forth in Sections 10 or 12 hereof)
and the Exercise Price shall be subject to the adjustments as provided herein.
Based on the initial Exercise Price of $42.25 per PetroFina ADS, a holder of ten
(10) PetroFina Warrants may purchase nine (9) PetroFina ADSs for an aggregate
purchase price of $380.25, subject to the terms and conditions hereof.
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40
Section 4. Countersignature and Registration. The Warrant
Certificates shall be executed on behalf of PetroFina by the Chairman and the
Managing Director, either manually or by facsimile signature, and have affixed
thereto PetroFina's seal or a facsimile thereof which shall be attested by the
Secretary of PetroFina, either manually or by facsimile signature. The Warrant
Certificates shall be manually countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of
PetroFina who shall have signed any of the Warrant Certificates shall cease to
be such officer of PetroFina before countersignature by the Warrant Agent and
issuance and delivery by PetroFina, such Warrant Certificates, nevertheless, may
be countersigned by the Warrant Agent, issued and delivered with the same force
and effect as though the person who signed such Warrant Certificate had not
ceased to be such officer of PetroFina; and any Warrant Certificate may be
signed on behalf of PetroFina by any person who, at the actual date of the
execution of such Warrant Certificate, shall be a proper officer of PetroFina to
sign such Warrant Certificate, although at the date of the execution of this
Agreement any such person was not such an officer.
The Warrant Agent will keep or cause to be kept, at one of its
offices in New York City, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of PetroFina
Warrants evidenced on its face by each of the Warrant Certificates and the date
of each of the Warrant Certificates.
Section 5. Transfer, Split Up, Combination and Exchange of
Warrant Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
Subject to the provisions of Section 13 hereof, at any time after the Close of
Business on the date hereof, and at or prior to the Close of Business on the
Expiration Date (as defined below), any Warrant Certificate or Warrant
Certificates may be transferred, split up, combined or exchanged for another
Warrant Certificate or Warrant Certificates, entitling the registered holder to
purchase a like number of PetroFina ADSs as the Warrant Certificate or Warrant
Certificates surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Warrant
Certificate shall make such request in writing delivered to the Warrant Agent,
and shall surrender the Warrant Certificate or Warrant Certificates to be
transferred, split up, combined or exchanged at the principal office of the
Warrant Agent. Thereupon, the Warrant Agent shall countersign and deliver to the
person entitled thereto a Warrant Certificate or Warrant Certificates, as the
case may be, as so requested. PetroFina may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Warrant Certificates,
together with reimbursement to PetroFina and the Warrant Agent of all reasonable
expenses incidental thereto.
Upon receipt by PetroFina and the Warrant Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Warrant Certificate, and, in case of loss, theft or destruction, of indemnity
or security in customary form and amount, and reimbursement to PetroFina and the
Warrant Agent of all reasonable expenses incidental thereto,
3
41
and upon surrender to the Warrant Agent and cancellation of the Warrant
Certificate if mutilated, PetroFina will make and deliver a new Warrant
Certificate of like tenor to the Warrant Agent for delivery to the registered
holder in lieu of the Warrant Certificate so lost, stolen, destroyed or
mutilated.
Section 6. Exercise of PetroFina Warrants; Exercise Price;
Expiration Date of PetroFina Warrants.
(a) Subject to Section 6(c) below, the registered holder of
any Warrant Certificate may exercise the PetroFina Warrants evidenced thereby in
whole or in part upon surrender of the Warrant Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the Warrant
Agent at the principal office of the Warrant Agent in New York City, together
with payment of the Exercise Price in immediately available funds for each
PetroFina ADS as to which the PetroFina Warrants are exercised, at any time
prior to the Close of Business on ______, 2003, [the fifth (5th) anniversary of
Closing Date] (the "Expiration Date").
(b) The Exercise Price for each PetroFina ADS pursuant to
the exercise of PetroFina Warrants initially shall be $42.25, subject to
adjustment from time to time as provided in Section 10 hereof. Based on the
initial Exercise Price of $42.25 per PetroFina ADS, a holder of ten (10)
PetroFina Warrants may purchase nine (9) PetroFina ADSs for an aggregate
purchase price of $380.25, subject to the terms and conditions hereof. The
Exercise Price shall be payable in lawful money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase duly executed, accompanied by payment of the Exercise Price
for the PetroFina ADSs to be purchased and an amount equal to any applicable tax
or governmental charge referred to in Section 8 in cash, or by certified check
or bank draft payable to the order of PetroFina, the Warrant Agent shall
thereupon promptly (i) requisition from Citibank, N.A., as depositary for the
PetroFina ADSs (the "Depositary"), certificates for the number of whole
PetroFina ADSs to be purchased, and PetroFina hereby irrevocably authorizes the
Depositary to comply with all such requests, (ii) deliver all payments received
upon exercise of PetroFina Warrants to PetroFina as reasonably instructed in
writing by PetroFina, (iii) when appropriate, requisition from PetroFina the
amount of cash to be paid in lieu of the issuance of fractional PetroFina ADSs
and (iv) after receipt of such certificates, cause the same to be delivered to
or upon the order of the registered holder of such Warrant Certificate,
registered in such name or names as may be designated by such holder, and, when
appropriate, after receipt promptly deliver such cash to or upon the order of
the registered holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate
shall exercise less than all PetroFina Warrants evidenced thereby, a new Warrant
Certificate evidencing PetroFina Warrants equivalent to the PetroFina Warrants
remaining unexercised shall be issued by the
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Warrant Agent to the registered holder of such Warrant Certificate or to his
duly authorized assigns, subject to the provisions of Section 13 hereof.
Section 7. Cancellation and Destruction of Warrant
Certificates. All Warrant Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to PetroFina
or to any of its agents, be delivered to the Warrant Agent for cancellation or
in canceled form, or, if surrendered to the Warrant Agent, shall be canceled by
it, and no Warrant Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement. PetroFina shall
deliver to the Warrant Agent for cancellation and retirement, and the Warrant
Agent shall so cancel and retire, any other Warrant Certificate purchased or
acquired by PetroFina otherwise than upon the exercise thereof. The Warrant
Agent shall deliver all canceled Warrant Certificates to PetroFina, or shall, at
the written request of PetroFina, destroy such canceled Warrant Certificates,
and in such case shall deliver a certificate of destruction thereof to
PetroFina.
Section 8. Reservation and Availability of PetroFina Shares
and PetroFina ADSs; Listing. PetroFina covenants and agrees that it will issue
PetroFina Shares promptly following exercise of the PetroFina Warrants and keep
sufficient cash available for payment in lieu of fractional PetroFina ADSs.
PetroFina covenants and agrees that it will (a) reserve and
keep available for issuance such number of authorized but unissued PetroFina
Shares or other securities of PetroFina deliverable upon exercise of the
PetroFina Warrants as will be sufficient to permit the exercise in full of all
outstanding PetroFina Warrants and (b) cause the Depositary to reserve and keep
available for issuance (and maintain capacity under the existing Registration
Statement on Form F-6 under the Securities Act of 1933 with respect to the
PetroFina ADSs) such number of authorized but unissued PetroFina ADSs issuable
upon exercise of the PetroFina Warrants as will be sufficient to permit the
exercise in full of all outstanding PetroFina Warrants.
PetroFina will use its best efforts to cause the PetroFina
Shares and PetroFina ADSs reserved for issuance as described above to be covered
at all times during the term of this Agreement by an effective registration
statement under the Securities Act of 1933.
PetroFina covenants and agrees that it will use its best
efforts to cause the PetroFina ADSs issuable upon the exercise of the PetroFina
Warrants to be listed on the NYSE (as defined below). To the extent that such
PetroFina ADSs cannot be listed on the NYSE, PetroFina shall use its best
efforts to cause the PetroFina ADSs to be listed on the NASDAQ (as defined
below). PetroFina agrees to use its best efforts to cause such listing, and the
listing of the PetroFina Warrants on the NYSE or NASDAQ, as the case may be, to
be maintained.
PetroFina covenants and agrees that it will take all such
actions as may be necessary to insure that all PetroFina ADSs delivered upon
exercise of PetroFina Warrants and
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all of the PetroFina Shares represented thereby shall, at the time of delivery
of the certificates for such PetroFina ADSs, be duly authorized, validly issued,
fully paid and nonassessable.
PetroFina further covenants and agrees that it will pay when
due and payable any and all recording, transfer and similar taxes and charges
which may be payable in respect of the original issuance or delivery of the
Warrant Certificates or certificates evidencing PetroFina ADSs upon exercise of
the Warrant Certificate or other securities or other property issuable
hereunder. PetroFina shall not, however, be required (i) to pay any tax or
governmental charge which may be payable in respect of any transfer involved in
(a) the transfer or delivery of Warrant Certificates or (b) the issuance or
delivery of certificates for PetroFina ADSs in a name other than that of the
registered holder of a Warrant Certificate surrendered for exercise or (ii) to
issue or deliver any certificate for PetroFina ADSs upon the exercise of any
PetroFina Warrants until any such tax or governmental charge shall have been
paid (any such tax or governmental charge being payable by the holder of such
Warrant Certificate at the time of surrender) or until it has been established
to PetroFina's satisfaction that no such tax or governmental charge is due.
Section 9. PetroFina ADS Record Date. Upon receipt by
PetroFina of a Warrant Certificate at the principal office of the Warrant Agent,
in proper form for exercise, and payment of the applicable Exercise Price as
required hereby, the holder of such Warrant Certificate shall be deemed to be
the holder of record of the PetroFina ADSs issuable upon such exercise,
notwithstanding that the PetroFina ADS transfer books shall then be closed or
that certificates representing such PetroFina ADSs shall not then be actually
delivered to the holder of such Warrant Certificate.
Section 10. Adjustment of Exercise Price, Number of PetroFina
ADSs or Number of PetroFina Shares. The Exercise Price and the number of
PetroFina ADSs issuable upon exercise of each PetroFina Warrant are subject to
adjustment from time to time as provided in this Section 10.
(a) Stock Dividend; Stock Splits; Reverse Stock Splits;
Reclassifications. In the event PetroFina shall at any time after the date of
the Merger Agreement (i) pay a dividend or make any other distribution with
respect to the PetroFina Shares in shares of any class of capital stock of
PetroFina, (ii) subdivide the outstanding PetroFina Shares into a greater number
of PetroFina Shares, (iii) combine the outstanding PetroFina Shares into a
smaller number of PetroFina Shares, (iv) change the number of PetroFina Shares
represented by each PetroFina ADS, or (v) issue any shares of capital stock in a
reclassification of PetroFina Shares (other than a reclassification in
connection with a consolidation, merger or other business combination which will
be governed by Section 12), the number and kind of shares of capital stock
issuable upon exercise of each PetroFina Warrant on such date shall be
proportionately adjusted so that the holder of any PetroFina Warrant exercised
after such time shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if such PetroFina Warrant had been exercised
immediately prior to such date and at a time when the PetroFina ADS transfer
books were open, such holder would have owned upon such exercise and been
entitled to receive by
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virtue of such dividend, subdivision, combination, change or reclassification.
Whenever the number of PetroFina ADSs purchasable upon exercise of each
PetroFina Warrant is adjusted pursuant to this Section 10(a), the Exercise Price
of such PetroFina Warrant shall be adjusted so that it shall equal the price
determined by multiplying such Exercise Price immediately prior to such
adjustment by a fraction the numerator of which shall be the number of PetroFina
ADSs purchasable upon the exercise of each PetroFina Warrant immediately prior
to such adjustment and denominator of which shall be the number of PetroFina
ADSs so purchasable immediately thereafter.
(b) Rights; Options; Warrants. In the event PetroFina shall
at any time after the date of the Merger Agreement issue rights, options,
warrants or convertible or exchangeable securities (other than a convertible or
exchangeable security subject to Section 10(a)) to all holders of PetroFina
Shares (such rights, options, warrants or convertible or exchangeable securities
not being available to holders of PetroFina Warrants) entitling them to
subscribe for or purchase PetroFina Shares at a price per PetroFina Share (or
having a conversion, exercise or exchange price per share, in the case of a
security convertible into or exercisable or exchangeable for PetroFina Shares)
less than the Current Market Price (as defined in Section 10(e)) per PetroFina
Share on the date of such issuance, the Exercise Price to be in effect after the
record date therefor shall be determined by multiplying (i) the Exercise Price
in effect immediately prior to such record date by (ii) a fraction of which the
numerator shall be the number of PetroFina Shares outstanding on such record
date plus the number of PetroFina Shares which the aggregate offering price of
the total number of PetroFina Shares so to be offered (or the aggregate initial
conversion, exercise or exchange price of the convertible, exercisable or
exchangeable securities so to be offered) would purchase at such Current Market
Price and of which the denominator shall be the PetroFina Shares outstanding on
such record date plus the number of additional PetroFina Shares to be offered
for subscription or purchase (or into which the convertible, exercisable or
exchangeable securities so to be offered are initially convertible, exercisable
or exchangeable). In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors of
PetroFina, whose determination shall be described in a statement filed with the
Warrant Agent. Upon each adjustment of the Exercise Price as a result of the
calculations made in this Section 10(b), each PetroFina Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Exercise Price, that number of PetroFina ADSs
(calculated to the nearest one-thousandth) obtained by (i) multiplying (x) the
number of PetroFina ADSs covered by a PetroFina Warrant immediately prior to
such adjustment by (y) the Exercise Price in effect immediately prior to such
adjustment of the Exercise Price and (ii) dividing the product so obtained by
the Exercise Price in effect immediately after such adjustment of the Exercise
Price.
(c) Distributions of Debt, Assets, Subscription Rights or
Convertible Securities. In the event PetroFina shall at any time after the date
of the Merger Agreement pay a dividend or make a distribution (other than cash
dividends payable in the ordinary course of business in accordance with Belgian
Corporation Law pursuant to a decision of the Ordinary
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General Meeting of Shareholders and dividends or distributions referred to in
Section 10(a) above) of evidences of indebtedness or assets or subscription
rights or warrants (excluding those referred to in Section 10(b) above), the
Exercise Price to be in effect after the record date therefor shall be
determined by multiplying (i) the Exercise Price in effect immediately prior to
such record date by (ii) a fraction of which the numerator shall be the Current
Market Price (as defined in Section 10(e)) per share of PetroFina Shares on such
record date, less the fair market value (as determined in good faith by the
Board of Directors of PetroFina, whose determination shall be described in a
statement filed with the Warrant Agent) of such distribution applicable to one
PetroFina Share, and of which the denominator shall be such Current Market Price
per share of the PetroFina Shares. Upon each adjustment of the Exercise Price as
a result of the calculations made in this Section 10(c), each PetroFina Warrant
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
PetroFina ADSs (calculated to the nearest one-thousandth) obtained by (i)
multiplying (x) the number of PetroFina ADSs covered by a PetroFina Warrant
immediately prior to such adjustment by (y) the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price and (ii) dividing the
product so obtained by the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(d) Issuance of Common Stock at Lower Values. In the event
PetroFina shall at any time after the date of the Merger Agreement, in a
transaction in which Sections 10 (a), (b) and (c) are not applicable, issue or
sell PetroFina Shares, or rights, options, warrants or convertible or
exchangeable securities containing the right to subscribe for or purchase
PetroFina Shares, at a price per PetroFina Share (determined in the case of such
rights, options, warrants or convertible or exchangeable securities, by dividing
(A) the total amount receivable by PetroFina in consideration of the issuance
and sale of such rights, options, warrants or convertible or exchangeable
securities, plus the total consideration, if any, payable to PetroFina upon
exercise conversion or exchange thereof, by (B) the total number of PetroFina
Shares covered by such rights, options, warrants or convertible or exchangeable
securities) that is lower than the Current Market Price (as defined in Section
10 (e)) per PetroFina Share in effect immediately prior to such sale or
issuance, then the number of ADSs thereafter purchasable upon the exercise of
each PetroFina Warrant shall be determined by multiplying the number of ADSs
theretofore purchasable upon exercise of such PetroFina Warrant by a fraction,
the numerator or which shall be the number of PetroFina Shares outstanding
immediately after such sale or issuance and the denominator of which shall be
the number of PetroFina Shares outstanding immediately prior to such sale or
issuance plus the number of PetroFina Shares which the aggregate consideration
received (determined as provided below) for such sale or issuance would purchase
at such Current Market Price per PetroFina Share. Such adjustment shall be made
successively whenever any such sale or issuance is made. For purposes of this
Section, the PetroFina Shares which the holder of any such rights, options,
warrants or convertible or exchangeable securities shall be entitled to
subscribe for or purchase shall be deemed to be issued and outstanding as of the
date of such sale and issuance and the consideration received by PetroFina
therefor shall be deemed to be the consideration received by PetroFina for such
rights, options, warrants or convertible or exchangeable securities, plus the
consideration or premium stated in such rights,
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options, warrants or convertible or exchangeable securities to be paid for the
PetroFina Shares covered thereby. Whenever the number of PetroFina ADS
purchasable upon exercise of each PetroFina Warrant is adjusted pursuant to this
Section 10(d), the Exercise Price of such PetroFina Warrant shall be adjusted so
that it shall equal the price determined by multiplying such Exercise Price
immediately prior to such adjustment by a fraction the numerator of which shall
be the number of PetroFina ADSs purchasable upon the exercise of each PetroFina
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of PetroFina ADSs so purchasable immediately thereafter.
In case PetroFina shall issue and sell PetroFina Shares or
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase PetroFina Shares for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then in determining the "price per PetroFina Share" and the "consideration"
receivable by or payable to PetroFina for purposes of the first sentence of this
Section 10(d), the Board of Directors of PetroFina shall determine, in good
faith, the fair value of such property, which determination shall be evidenced
by a resolution of the Board of Directors of PetroFina. In case PetroFina shall
issue and sell rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase PetroFina Shares,
together with one or more other securities as part of a unit at a price per
unit, then in determining the "price per PetroFina Share" and the
"consideration" receivable by or payable to for purposes of the first sentence
of this Section 10 (d), the Board of Directors of PetroFina shall determine, in
good faith, the fair value of the rights, options, warrants or convertible or
exchangeable securities then being sold as part of such unit which determination
shall be evidenced by a resolution of the Board of Directors of PetroFina.
(e) For the purpose of any computation hereunder, the
"Current Market Price" per PetroFina Share on any date shall be deemed to be the
average of the daily Closing Prices per PetroFina Share for the 10 consecutive
Trading Days immediately prior to such date. The "Closing Price" per PetroFina
Share for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the Brussels Stock Exchange. If on any such Trading Day or Days such
securities are not quoted by any such organization, such Trading Day or Days
shall be replaced for purposes of the foregoing calculation by the requisite
Trading Day or Days preceding the commencement of such 10 Trading Day period on
which such securities are so quoted. If the PetroFina Shares are not so listed
or traded, the "Current Market Price" per PetroFina Share shall be deemed to be
the fair value per PetroFina Share as determined in good faith by the Board of
Directors of PetroFina, whose determination shall be described in a statement
filed with the Warrant Agent, based on (a) the most recently completed
arm's-length transaction between PetroFina and a Person other than an affiliate
of PetroFina, the closing of which occurred on such date or within the
three-month period preceding such date, or (b) if no such transaction shall have
occurred on such date or within such three-month period, the value of
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the security as determined by an independent financial expert selected by such
Board and reasonably acceptable to the Warrant Agent.
(f) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
Section 10(f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
10 shall be made to the nearest cent, the nearest ten-thousandth of a PetroFina
Share or the nearest one-thousandth of a PetroFina ADS, as the case may be.
Notwithstanding the first sentence of this Section 10(f), any adjustment
required by this Section 10 shall be made no later than the earlier of (i) three
years from the date of the transaction which mandates such adjustment or (ii)
the Expiration Date.
(g) In the event that at any time, as a result of an
adjustment made pursuant to Section 10(a), the holder of any PetroFina Warrant
thereafter exercised shall become entitled to receive any shares of capital
stock of PetroFina other than PetroFina ADSs, the number of such other shares so
receivable upon exercise of any PetroFina Warrant 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 contained in Section 10(a) through
(f) inclusive, and the provisions of Sections 6, 8, 9 and 12 with respect to the
PetroFina ADSs shall apply on like terms to any such other shares.
(h) Expiration of Rights, Options and Conversion Privileges.
Upon the expiration of any rights, options, warrants or conversion or exchange
privileges that have previously resulted in an adjustment hereunder, if any
thereof shall not have been exercised, the Exercise Price and the number of
PetroFina ADSs or PetroFina Shares issuable upon the exercise of each PetroFina
Warrant shall, upon such expiration, be readjusted and shall thereafter, upon
any future exercise, 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 PetroFina Shares so issued were the PetroFina Shares, if any,
actually issued or sold upon the exercise of such rights, options, warrants or
conversion or exchange rights and (ii) such PetroFina Shares, if any, were
issued or sold for the consideration actually received by PetroFina upon such
exercise plus the consideration, if any, actually received by PetroFina for
issuance, sale or grant of all such rights, options, warrants or conversion or
exchange rights whether or not exercised; provided, however, that no such
readjustment shall have the effect of increasing the Exercise Price by an
amount, or decreasing the number of PetroFina ADSs or PetroFina Shares issuable
upon exercise of each PetroFina Warrant by a number, in excess of the amount or
number of the adjustment initially made in respect to the issuance, sale or
grant of such rights, options, warrants or conversion or exchange rights.
(i) All PetroFina Warrants originally issued by PetroFina
subsequent to any adjustment made to the Exercise Price hereunder shall evidence
the right to purchase, at the
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adjusted Exercise Price, the number of PetroFina ADSs purchasable from time to
time hereunder upon exercise of the PetroFina Warrants, all subject to further
adjustment as provided herein.
(j) Irrespective of any adjustment or change in the Exercise
Price or the number of PetroFina ADSs issuable upon the exercise of the
PetroFina Warrants, the Warrant Certificates theretofore and thereafter issued
may continue to express the Exercise Price per PetroFina ADS and the number of
PetroFina ADSs which were expressed upon the initial Warrant Certificates issued
hereunder.
(k) PetroFina agrees that it will not, by amendment of its
statuts/statuten or through reorganization, consolidation, merger, dissolution
or sale of assets, or by any other voluntary act, avoid or seek to avoid the
observance or performance of any of the covenants, stipulations or conditions to
be observed or performed hereunder by PetroFina.
(l) In any case in which this Section 10 shall require that
an adjustment in the Exercise Price be made effective as of a record date for a
specified event, PetroFina may elect to defer until the occurrence of such event
the issuance to the holder of any PetroFina Warrant exercised after such record
date the PetroFina ADSs or other capital stock of PetroFina issuable upon such
exercise over and above the amount of PetroFina ADSs or other capital stock of
PetroFina, if any, issuable upon such exercise on the basis of the Exercise
Price in effect prior to such adjustment; provided, however, that PetroFina
shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 10 to the contrary
notwithstanding, PetroFina shall be entitled to make such reductions in the
Exercise Price, in addition to those adjustments expressly required by this
Section 10, as and to the extent that it in its sole discretion shall determine
to be advisable in order that any event treated for United States federal income
tax purposes as a distribution of stock or stock rights shall not be taxable to
the recipients.
(n) If any event occurs as to which the foregoing provisions
of this Section 10 are not strictly applicable or, if strictly applicable, would
not, in the good faith judgment of the Board of Directors of PetroFina, fairly
and adequately protect the purchase rights of the PetroFina Warrants in
accordance with the essential intent and principles of such provisions, then
such Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of such board, to protect such purchase
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Exercise Price or decreasing the number of PetroFina ADSs
issuable upon exercise of any PetroFina Warrant.
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Section 11. Certification of Adjusted Exercise Price or
Number of PetroFina ADSs. Whenever the Exercise Price or the number of PetroFina
ADSs issuable upon the exercise of each PetroFina Warrant is adjusted as
provided in Sections 10 or 12, PetroFina shall (a) promptly prepare a
certificate setting forth the Exercise Price as so adjusted and/or the number of
PetroFina ADSs issuable upon exercise of each PetroFina Warrant as so adjusted,
and a brief statement of the facts accounting for such adjustment, (b) promptly
file with the Warrant Agent and with each transfer agent for the PetroFina ADSs
a copy of such certificate and (c) mail, or cause to be mailed, a brief summary
thereof to each holder of a Warrant Certificate in accordance with Section 24.
Section 12. Reclassification, Consolidation, Merger,
Combination, Sale or Conveyance. In case any of the following shall occur while
any PetroFina Warrants are outstanding: (i) any consolidation, merger or
combination of PetroFina with or into another corporation as a result of which
holders of PetroFina Shares shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such PetroFina Shares, or (ii) any sale or conveyance of all or substantially
all of the property or assets of PetroFina to any other entity as a result of
which holders of PetroFina Shares shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in exchange for
such PetroFina Shares, then PetroFina, or such successor corporation or
transferee, as the case may be, shall make appropriate provision by amendment of
this Agreement or by the successor corporation or transferee executing with the
Warrant Agent an agreement so that the holders of the PetroFina Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
PetroFina Warrants, to receive the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, combination, sale or
conveyance as would be received by a holder of the number of PetroFina Shares
represented by the PetroFina ADSs issuable upon exercise of such PetroFina
Warrant immediately prior to such consolidation, combination, merger, sale or
conveyance.
If the holders of the PetroFina Shares may elect from choices
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, combination, sale or conveyance, then for the purpose of
this Section 12 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, combination, sale or conveyance
shall be deemed to be the choice specified by the holder of the PetroFina
Warrant, which specification shall be made by the holder of the PetroFina
Warrant by the later of (i) 10 Trading Days after the holder of the PetroFina
Warrant is provided with a final version of all information required by law or
regulation to be furnished to holders of the PetroFina Shares concerning such
choice, or if no such information is required, 10 Trading Days after PetroFina
notified the holder of the PetroFina Warrant of all material facts concerning
such specification and (ii) the last time at which holders of PetroFina Shares
are permitted to make their specification known to PetroFina. If the holder of
the PetroFina Warrant fails to make any specification, the holder's choice shall
be deemed to be whatever choice is made by a plurality of holders of PetroFina
Shares not affiliated with PetroFina or any other party to the consolidation,
merger, combination, sale or conveyance. Such new PetroFina Warrants shall
provide for
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adjustments which, for events subsequent to the effective date of such new
PetroFina Warrants, shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 10 and this Section 12.
PetroFina shall mail, or cause to be mailed, by first-class
mail, postage prepaid, to each registered holder of a PetroFina Warrant, written
notice of the execution of any such amendment or agreement. Any new agreement
entered into by the successor corporation or transferee shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 10. The Warrant Agent shall be under no
responsibility to determine the correctness of any provisions contained in such
agreement relating either to the kind or amount of securities or other property
receivable upon exercise of PetroFina Warrants or with respect to the method
employed and provided therein for any adjustments and shall be entitled to rely
upon the provisions contained in any such agreement.
The above provisions of this Section 12 shall similarly apply
to successive consolidations, mergers, combinations, sales or conveyances.
Section 13. Fractional PetroFina Warrants and Fractional
PetroFina ADSs.
(a) PetroFina shall not be required to issue fractions of
PetroFina Warrants or to distribute Warrant Certificates which evidence
fractional PetroFina Warrants. In lieu of such fractional PetroFina Warrants,
there shall be paid to the persons to whom Warrant Certificates representing
such fractional PetroFina Warrants would otherwise be issuable an amount in cash
(without interest) equal to the product of such fraction of a PetroFina Warrant
multiplied by the Current Market Price per whole PetroFina Warrant. For the
purpose of any computation under this Section 13(a), "Current Market Price" per
PetroFina Warrant on any date shall be deemed to be the average of the daily
Closing Prices per PetroFina Warrant for the 10 consecutive Trading Days
immediately prior to such date. The Closing Price per PetroFina Warrant for each
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange, Inc. ("NYSE") or, if such PetroFina Warrants are not listed or
admitted to trading on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such securities are listed or admitted to
trading or, if such securities are not listed or admitted to trading on any
national securities exchange, the average of the high bid and low asked prices
in the over the counter market, as reported by National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"). If on any such
Trading Day or Days such securities are not quoted by any such organization,
such Trading Day or Days shall be replaced for purposes of the foregoing
calculation by the requisite Trading Day or Days preceding the commencement of
such 10 Trading Day period on which such securities are so quoted. If the
PetroFina Warrants are not so listed or traded, the "Current Market Price" per
PetroFina Warrant shall be deemed to be the
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51
fair value per PetroFina Warrant as determined in good faith by the Board of
Directors of PetroFina, whose determination shall be described in a statement
filed with the Warrant Agent.
(b) PetroFina shall not be required to issue fractions of
PetroFina ADSs upon exercise of PetroFina Warrants or to distribute PetroFina
ADS certificates which evidence fractional PetroFina ADSs. In lieu of fractional
PetroFina ADSs, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash (without interest) equal to the product of such
fractional part of a PetroFina ADS multiplied by the Current Market Price per
PetroFina ADS. For the purpose of any computation under this Section 13(b),
"Current Market Price" per PetroFina ADS on any date shall be deemed to be the
average of the daily Closing Prices per PetroFina ADS for the 10 consecutive
Trading Days immediately prior to such date. The Closing Price per PetroFina ADS
for each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the NYSE or,
if such PetroFina ADSs are not listed or admitted to trading on the NYSE, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which such
securities are listed or admitted to trading or, if such securities are not
listed or admitted to trading on any national securities exchange, the average
of the high bid and low asked prices in the over the counter market, as reported
by NASDAQ. If on any such Trading Day or Days such securities are not quoted by
any such organization, such Trading Day or Days shall be replaced for purposes
of the foregoing calculation by the requisite Trading Day or Days preceding the
commencement of such 10 Trading Day period on which such securities are so
quoted. If the PetroFina ADSs are not so listed or traded, the "Current Market
Price" per PetroFina ADS shall be deemed to be the fair value per PetroFina ADS
as determined in good faith by the Board of Directors of PetroFina, whose
determination shall be described in a statement filed with the Warrant Agent,
based on (a) the most recently completed arm's-length transaction between
PetroFina and a Person other than an affiliate of PetroFina, the closing of
which occurred on such date or within the three-month period preceding such
date, or (b) if no such transaction shall have occurred on such date or within
such three-month period, the value of the security as determined by an
independent financial expert selected by such Board and reasonably acceptable to
the Warrant Agent.
(c) The holder of a PetroFina Warrant by the acceptance of
the PetroFina Warrant expressly waives his right to receive any fractional
PetroFina Warrant or any fractional PetroFina ADS upon exercise of a PetroFina
Warrant (but not to the cash payment required to be made by PetroFina in lieu
thereof in accordance with this Section 13).
Section 14. Right of Action. All rights of action in respect
of this Agreement are vested in the respective registered holders of the Warrant
Certificates, and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of the holder of any other Warrant Certificate,
may, on such holder's own behalf and for such holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against PetroFina
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52
to enforce, or otherwise act in respect of, such holder's right to exercise the
PetroFina Warrants evidenced by such Warrant Certificate in the manner provided
in such Warrant Certificate and in this Agreement.
Section 15. Agreement of Warrant Certificate Holders. Every
holder of a Warrant Certificate by accepting the same consents and agrees with
PetroFina and the Warrant Agent and with every other holder of a Warrant
Certificate that:
(a) the Warrant Certificates are transferable only on
the registry books of the Warrant Agent if surrendered at the
principal office of the Warrant Agent, duly endorsed or
accompanied by a proper instrument of transfer; and
(b) PetroFina and the Warrant Agent may deem and
treat the person in whose name the Warrant Certificate is
registered as the absolute owner thereof and of the PetroFina
Warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificates made by
anyone other than PetroFina or the Warrant Agent) for all
purposes whatsoever, and neither PetroFina nor the Warrant
Agent shall be affected by any notice to the contrary.
Section 16. Warrant Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Warrant Certificate shall be entitled to
vote, receive dividends or distributions on, or be deemed for any purpose the
holder of, PetroFina ADSs or PetroFina Shares or any other securities of
PetroFina which may at any time be issuable on the exercise or conversion of the
PetroFina Warrants represented thereby, nor shall anything contained herein or
in any Warrant Certificate be construed to confer upon the holder of any Warrant
Certificate, as such, any of the rights of a stockholder of PetroFina or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 23), or to receive dividends or
distributions or subscription rights, or otherwise, until the PetroFina Warrant
or PetroFina Warrants evidenced by such Warrant Certificate shall have been
exercised in accordance with the provisions hereof.
Section 17. Concerning the Warrant Agent. PetroFina agrees to
pay to the Warrant Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Warrant Agent, its reasonable
out-of-pocket expenses and counsel fees and other reasonable disbursements
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder. PetroFina also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense, incurred without gross negligence, bad faith or willful misconduct on
the part of the Warrant Agent, for anything done or omitted by the Warrant Agent
in connection with the acceptance and administration of this Agreement,
including the reasonable costs and expenses of defending against any claim of
liability in the premises.
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Section 18. Merger or Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent or any successor
Warrant Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Warrant
Agent or any successor Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent or any successor
Warrant Agent, shall be the successor to the Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Warrant Agent under the provisions of Section 20. In
case at the time such successor Warrant Agent shall succeed to the agency
created by this Agreement any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor Warrant Agent may adopt the
countersignature of the predecessor Warrant Agent and deliver such Warrant
Certificates so countersigned; and in case at that time any of the Warrant
Certificates shall not have been countersigned, any successor Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor Warrant Agent; and in all such
cases such Warrant Certificates shall have the full force provided in the
Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall
not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such
cases such Warrant Certificates shall have the full force provided in the
Warrant Certificates and in this Agreement.
Section 19. Duties of Warrant Agent. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, all of which PetroFina and the holders of
Warrant Certificates, by their acceptance thereof, shall be bound:
(a) The Warrant Agent may consult with legal counsel
(who may be legal counsel for PetroFina), and the opinion 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 good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by
PetroFina 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 certificate signed by
any managing or executive director or the Secretary of
PetroFina and delivered to the Warrant Agent; and such
certificate shall be full
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54
authentication to the Warrant Agent for any action taken or
suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only
for its own gross negligence, bad faith or willful misconduct.
(d) The Warrant Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Agreement or in the Warrant Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and shall be deemed
to have been made by PetroFina only.
(e) The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its
countersignature thereof); nor shall it be responsible for any
breach by PetroFina of any covenant or condition contained in
this Agreement or in any Warrant Certificate; nor shall it be
responsible for the adjustment of the Exercise Price or the
making of any change in the number of PetroFina ADSs or
PetroFina Shares required under the provisions of Sections 10
or 12 or responsible for the manner, method or amount of any
such change or the ascertaining of the existence of facts that
would require any such adjustment or change (except with
respect to the exercise of PetroFina Warrants evidenced by
Warrant Certificates after actual notice of any adjustment of
the Exercise Price); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any PetroFina ADSs to be
issued pursuant to this Agreement or any Warrant Certificate
or as to whether any PetroFina ADSs or PetroFina Shares will,
when issued, be duly authorized, validly issued, fully paid
and nonassessable.
(f) PetroFina agrees that it will 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 by the
Warrant Agent of the provisions of this Agreement.
(g) The Warrant Agent is hereby authorized and
directed to accept instructions with respect to the
performance of its duties hereunder from any managing director
or the Secretary of PetroFina, and to apply to such officers
for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of
any such officer.
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(h) The Warrant Agent and any shareholder, director,
officer or employee of the Warrant Agent may buy, sell or deal
in any of the PetroFina Warrants or other securities of
PetroFina or become pecuniarily interested in any transaction
in which PetroFina may be interested, or contract with or lend
money to PetroFina or otherwise act as fully and freely as
though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any
other capacity for PetroFina or for any other legal entity.
(i) 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 attorneys or agents or for any loss to PetroFina
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
Section 20. Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties under this Agreement upon 60 days'
notice in writing mailed to PetroFina and to each transfer agent of the
PetroFina ADSs by registered or certified mail, and to the holders of the
Warrant Certificates by first-class mail. PetroFina may remove the Warrant Agent
or any successor Warrant Agent upon 60 days' notice in writing, mailed to the
Warrant Agent or successor Warrant Agent, as the case may be, and to each
transfer agent of the PetroFina ADSs by registered or certified mail, and to the
holders of the Warrant Certificates by first-class mail. If the Warrant Agent
shall resign or be removed or shall otherwise become incapable of acting,
PetroFina shall appoint a successor to the Warrant Agent. If PetroFina shall
fail to make such appointment within a period of 60 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the holder of a Warrant
Certificate (who shall, with such notice, submit his Warrant Certificate for
inspection by PetroFina), then the registered holder of any Warrant Certificate
may apply to any court of competent jurisdiction for the appointment of a new
Warrant Agent. Any successor Warrant Agent, whether appointed by PetroFina or by
a court, shall be a corporation organized and doing business under the laws of
the United States or of a state thereof, in good standing, which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by federal or state authority and which has at the time of its
appointment as Warrant Agent a combined capital and surplus of at least
$50,000,000. After appointment, the successor Warrant Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the
predecessor Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, PetroFina shall file notice
thereof in writing with the predecessor Warrant Agent and each transfer agent of
the PetroFina ADSs, and mail a notice thereof in writing to the registered
holders of the Warrant Certificates. However, failure to give any notice
provided for
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in this Section 20, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor Warrant Agent, as the case may be.
Section 21. Issuance of New Warrant Certificates.
Notwithstanding any of the provisions of this Agreement or of the PetroFina
Warrants to the contrary, PetroFina may, at its option, issue new Warrant
Certificates evidencing PetroFina Warrants in such form as may be approved by
its Board of Directors to reflect any adjustment or change in the Exercise Price
per PetroFina ADS and the number or kind or class of shares of stock or other
securities or property purchasable under the several Warrant Certificates made
in accordance with the provisions of this Agreement.
Section 22. Purchase of PetroFina Warrants by PetroFina.
Nothing in this Agreement shall prevent PetroFina from acquiring PetroFina
Warrants.
Section 23. Notice of Proposed Actions. In case PetroFina
shall propose (a) to declare a dividend on the PetroFina Shares payable in
shares of capital stock of any class or to make any other distribution to all
holders of PetroFina Shares (including any distribution made in connection with
a consolidation, merger or combination in which PetroFina is the continuing
corporation), or (b) to offer rights, options or warrants to all holders of
PetroFina Shares entitling them to subscribe for or purchase PetroFina Shares
(or securities convertible into or exercisable or exchangeable for PetroFina
Shares or any other securities), or (c) to offer any shares of capital stock in
a reclassification of PetroFina Shares (including any such reclassification in
connection with a consolidation, merger or combination in which PetroFina is the
continuing corporation), or (d) to effect any consolidation, merger or
combination into or with, or to effect any sale or other transfer (or to permit
one or more of its subsidiaries to effect any sale or other transfer), in one or
more transactions, of more than 50% of the assets or net income of PetroFina and
its subsidiaries (taken as a whole) to, any other Person, (e) to effect the
liquidation, dissolution or winding up of PetroFina or (f) to take any other
action referred to in Section 10, then, in each such case, PetroFina shall give,
or cause to be given, to each registered holder of a PetroFina Warrant, in
accordance with Section 24, a notice of such proposed action, which shall
specify the date of such stock dividend, distribution of rights or warrants, or
the date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, winding up or other action referred to in Section 10
is to take place and the date of participation therein by the holders of
PetroFina Shares, if any such date is to be fixed, and such notice shall be so
given at least 20 days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of PetroFina Shares,
whichever shall be the earlier. The failure to give notice required by this
Section 23 or any defect therein shall not affect the legality or validity of
the action taken by PetroFina or the vote upon any such action. Unless
specifically required by Section 10, the Exercise Price, the number of PetroFina
ADSs covered by each PetroFina Warrant and the number of PetroFina Warrants
outstanding shall not be subject to adjustment as a result of PetroFina being
required to give notice pursuant to this Section 23.
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Section 24. Notices. Notices or demands authorized by this
Agreement to be given or made (i) by the Warrant Agent or by the holder of any
Warrant Certificate to or on PetroFina, (ii) subject to the provisions of
Section 20, by PetroFina or by the holder of any Warrant Certificate to or on
the Warrant Agent or (iii) by PetroFina or the Warrant Agent to the holder of
any Warrant Certificate, shall be deemed given (x) on the date delivered, if
delivered personally, (y) on the first Trading Day following the deposit thereof
with Federal Express, DHL or another recognized overnight courier, if sent by
Federal Express, DHL or another recognized overnight courier, and (z) on the
fourth Trading Day following the mailing thereof with postage prepaid, if mailed
by registered or certified mail (return receipt requested), in each case to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to PetroFina, to:
PetroFina S.A.
00 Xxx xx x'Xxxxxxxxx
X-0000 Xxxxxxxx, Xxxxxxx
(00-0) 000 00 00
Telecopy: 00-0-000-0000
Attention: Secretary General
(b) If to the Warrant Agent, to:
Attention:
(c) If to the holder of any Warrant Certificate, to the
address of such holder as shown on the register of PetroFina Warrants.
Section 25. Supplements and Amendments.
(a) PetroFina and the Warrant Agent may from time to time
supplement or amend this Agreement without the approval of any holders of
Warrant Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions with regard to matters
or questions arising hereunder which PetroFina and the Warrant Agent may deem
necessary or desirable and which shall not materially adversely affect the
interests of the holders of Warrant Certificates.
(b) In addition to the foregoing, with the consent of
holders other than PetroFina or any affiliate thereof of not less than a
majority in number of the then outstanding PetroFina Warrants (other than those
held by PetroFina or any affiliate thereof), PetroFina and
20
58
the Warrant Agent may modify this Agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the holders of the
Warrant Certificates; provided, however, that no modification of the terms
(including but not limited to the adjustments described in Section 10) upon
which the PetroFina Warrants are exercisable or reducing the percentage required
for consent to modification of this Agreement or otherwise modifying, or adding
a provision inconsistent with, this Section 25(b) may be made without the
consent of the holder of each outstanding PetroFina Warrant affected thereby.
Section 26. Successors. All covenants and provisions of this
Agreement by or for the benefit of PetroFina or the Warrant Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.
Section 27. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give any Person other than PetroFina, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of PetroFina, the Warrant Agent and
the registered holders of the Warrant Certificates.
Section 28. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, without
giving effect to the conflicts of law principles thereof.
Section 29. Counterparts. This 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
but one and the same instrument.
Section 30. Captions. The caption of the sections of this
Agreement have been inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunder affixed and attested, all as of the day and year first above written.
PETROFINA S.A.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
______________________________, as Warrant Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
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Exhibit 1 to Warrant Agreement
[Form of Warrant Certificate]
Certificate No. M-
_______________ Warrants
NOT EXERCISABLE AFTER ________ __, 200__
Warrant Certificate
PETROFINA
This certifies that __________________________, or registered
assigns, is the registered owner of the number of PetroFina Warrants set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Warrant Agreement dated as of ________ __, 1998
[the Closing Date] (the "Agreement") between PetroFina S.A., a company organized
under the laws of Belgium ("PetroFina"), and _______________, a
___________________ (the "Warrant Agent"), to purchase or receive from PetroFina
at any time after ________ __, 1998 [the Closing Date] and prior to 5:00 P.M.
(New York City time) on ________ __, 2003, the [fifth (5th) anniversary of the
Closing Date], at the principal office of the Warrant Agent, or its successors
as Warrant Agent, in New York City, nine-tenths (0.9) of one American Depositary
Share (each, a "PetroFina ADS"), each PetroFina ADS representing one-tenth of
one ordinary voting share (a "PetroFina Share") of PetroFina, represented hereby
to be purchased at $42.25 per PetroFina ADS (the "Exercise Price"), in each case
upon presentation and surrender of this Warrant Certificate with the Form of
Election to Purchase duly executed, accompanied by payment of the Exercise Price
for the PetroFina ADSs to be purchased and any applicable taxes or charges. The
number of PetroFina ADSs which may be purchased upon exercise of the PetroFina
Warrants evidenced by this Warrant Certificate and the Exercise Price set forth
above are the number and Exercise Price as of [date of the Merger Agreement],
based on the PetroFina ADSs as constituted at such date. As provided in the
Agreement, the Exercise Price and the number and type of securities which may be
purchased upon the exercise of the PetroFina Warrants evidenced by this Warrant
Certificate are subject to modification and adjustment upon the occurrence of
certain events. Based on the initial Exercise Price of $42.25 per PetroFina ADS,
a holder of ten (10) PetroFina Warrants may purchase nine (9) PetroFina ADSs for
an aggregate purchase price of $380.25.
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This Warrant Certificate is subject to all of the terms,
provisions and conditions of the Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Warrant Agent, PetroFina and the holders of the Warrant Certificates. Copies
of the Agreement are on file at the above-mentioned office of the Warrant Agent.
This Warrant Certificate, with or without other Warrant
Certificates, upon surrender at the principal office of the Warrant Agent, may
be exchanged for another Warrant Certificate or Warrant Certificates of like
tenor and date evidencing PetroFina Warrants entitling the holder to purchase a
like aggregate number of PetroFina ADSs, in each case as the PetroFina Warrants
evidenced by the Warrant Certificate or Warrant Certificates surrendered shall
have entitled such holder to purchase or receive. If this Warrant Certificate
shall be exercised in part, the holder hereof shall be entitled to receive upon
surrender hereof another Warrant Certificate or Warrant Certificates for the
number of PetroFina Warrants not exercised.
PetroFina shall make a cash payment in lieu of issuing
fractional PetroFina Warrants or fractional PetroFina ADSs, as provided in the
Agreement.
No holder of this Warrant Certificate shall be entitled to
vote, participate in any shareholder meeting, receive dividends or distributions
on, or be deemed for any purpose the holder of, PetroFina ADSs or PetroFina
Shares or of any other securities of PetroFina which may at any time be issuable
on the exercise hereof, nor shall anything contained in the Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of PetroFina or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Agreement), or
to receive dividends or subscription rights, or otherwise, until the PetroFina
Warrant or PetroFina Warrants evidenced by this Warrant Certificate shall have
been exercised as provided in the Agreement.
This Warrant Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Warrant Agent.
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WITNESS the facsimile signature of the proper officers of
PetroFina and its corporate seal. Dated as of ________, 199__.
ATTEST: PETROFINA S.A.
By:
----------------------------- ----------------------------
Secretary Name:
--------------------------
Title:
-------------------------
Countersigned:
-----------------------------
By
---------------------------
Authorized signature
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate.)
To ____________________________________, as Warrant Agent:
The undersigned hereby irrevocably elects to exercise
___________________ PetroFina Warrants represented by this Warrant Certificate
to purchase the PetroFina ADSs issuable upon the exercise of such PetroFina
Warrants and requests that Certificates for such PetroFina ADSs be issued in the
name of and delivered to:
Please insert social security
or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
If such number of PetroFina Warrants shall not be all the PetroFina Warrants
evidenced by this Warrant Certificate, a new Warrant Certificate for the balance
remaining of such PetroFina Warrants shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
Dated:
--------------------------
--------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate)
Signature Guaranteed:
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Annex A to Warrant
ASSIGNMENT FORM
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificates)
FOR VALUE RECEIVED, __________________________________________
hereby sells, assigns and transfers unto
Name:
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(please typewrite or print in block letters)
Address:
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this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer within the Warrant Certificate the same on the books of the Company,
with full power of substitution in the premises.
Date ________, _____
Signature
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Signature Guaranteed:
Notice
The signature to the foregoing assignment must correspond to
the name as written upon the face of this Warrant Certificate in every
particular, without alteration or enlargement or any change whatsoever.
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