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Exhibit 2.3
DATED 31 MARCH 2000
1. PETROFINA S.A.
2. B H ACQUISITION LIMITED
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AGREEMENT
For
The sale and purchase of the whole
Of the issued share capital of
COMPAGNIE EUROPEENNE D'ASSURANCES INDUSTRIELLES S.A.
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THIS SHARE SALE AND PURCHASE AGREEMENT IS MADE as of March 31, 2000
Between
1. PETROFINA S.A., a company existing and organized under
Belgian law and having its registered office located at 00,
xxx xx x'Xxxxxxxxx, 0000 Xxxxxxxx acting on behalf of itself
and its fully owned subsidiary, ETMOFINA S.A., a company
existing and organized under Belgian law and having its
registered office located at 00, xxx xx x'Xxxxxxxxx, 0000
Xxxxxxxx (hereinafter collectively referred to as "Seller")
2. BH ACQUISITION LIMITED ("Purchaser"), a company existing and
organised under Bermudian law and having its registered
office located at c/o Conyers, Xxxx & Xxxxxxx, Clarendon
House, 2 Church Street, Xxxxxxxx, HMCX, Bermuda
Seller and Purchaser being hereinafter collectively referred to as
"Parties" and individually as "Party".
WHEREAS:
A. Compagnie Europeenne d'Assurances Industrielles S.A.(the
"Company") is a private company incorporated with limited
liability under the laws of Belgium, further particulars of
which are set out in Schedule 1 hereto;
B. Seller is the beneficial owner of the whole of the issued
share capital of the Company ("the Shares");
C. Pursuant to a Public Exchange Offering for PetroFina S.A.,
the Company's ultimate parent company, made from May to July
1999 by TOTAL S.A., the latter now owns approximately 98.8%
of the shares in PetroFina S.A.;
D. With a view to reorganising the TOTALFINA ELF group
structure, Seller as beneficial owner has agreed to sell,
assign and transfer to Purchaser, and Purchaser has agreed to
purchase and acquire the Shares from Seller upon the terms
and conditions as set forth herein.
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NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. SALE AND PURCHASE OF SHARES
Transfer of shares
(a) Upon the terms and subject to the conditions contained in
this Agreement, at the Closing as defined herein, Seller
shall sell with full title guarantee and Purchaser shall
purchase, the Shares free and clear of any lien, security
interest, pledge, charge, or other encumbrance, at the price
and on the payment and other terms set forth in this
Agreement.
Closing Date
(b) Purchaser shall become the owner of the Shares with
effect from the Closing and will be deemed to have had all
the rights attached to the Shares with effect from the
Closing, including the right to collect all dividends or
other distributions declared, made or distributed on or after
such date.
2. CONSIDERATION
The consideration for the sale and purchase of all the Shares shall be
USD 8,000,000 (Eight million United States dollars) (the "Purchase
Price"). Payment of such consideration shall be made in cash by
Purchaser to Seller at Closing by wire transfer of immediately
available funds to such bank account as Seller may designate at least
three business days prior to Closing.
3. CLOSING
3.1. Time and Place of the Closing
The completion of the transactions contemplated by this
Agreement (the "Closing") shall take place at Seller's
registered office in Belgium, or at such other place as the
Parties may agree, at or as soon as practicable after all
conditions to Closing set forth in Section 3.4 have been
satisfied.
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The date on which the Closing takes place is referred to in
this Agreement as the "Closing Date".
3.2. Seller's obligations at Closing
On the Closing Date, Seller shall deliver to Purchaser the
following documents or things:
a) duly issued certificates for the Shares, duly endorsed
for transfer in favour of Purchaser;
b) executed instruments of transfer in respect of the
Shares and, if required, stamped at the expense of
Purchaser and any other appropriate documents required
to evidence and give good title to the Shares;
c) the common seal, if any, the certificate of
incorporation and the statutory books of the Company;
and
d) a certificate of a duly authorised officer of Seller
dated the Closing Date, setting forth (x) the
resolution of Seller's Board of Directors authorising
the execution and delivery of this Agreement by Seller
and the completion of the transactions contemplated
hereby and certifying that such resolution is in full
force and effect, (y) that all representations and
warranties of Seller set out in Clauses 5.1 to 5.6 in
this Agreement are true as of the Closing Date and (z)
all covenants and agreements and conditions contained
in this Agreement to be performed or complied with by
Seller have been performed or complied with.
3.3. Purchaser's obligations at Closing
On the Closing Date, Purchaser shall deliver to Seller:
a) the consideration as required under Clause 2 above; and
b) a certificate of a duly authorised officer of
Purchaser, dated the Closing Date, setting forth (x)
the resolution of the Board of Directors authorising
the execution
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and delivery of this Agreement and the completion of
the transactions contemplated hereby and certifying
that such resolution is in full force and effect, (y)
that all representations and warranties of Purchaser in
this Agreement are true as of the Closing Date and (z)
all covenants and agreements and conditions contained
in this Agreement to be performed or complied with by
Purchaser have been performed or complied with.
3.4. Conditions of Closing
The obligation of Seller, on the one hand, and Purchaser, on
the other hand, to proceed with the Closing shall be subject
to the following:
a) each representation and warranty of the other Party
described in clause 3.2 or 3.3, as the case may be,
shall be true as of the Closing Date;
b) no action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or
proposed before any court, governmental agency or
legislative body to enjoin, restrain, prohibit or
obtain substantial damages in respect of this Agreement
or the completion of the transactions contemplated
hereby;
c) each Party shall have delivered to the other the
documents contemplated in Clauses 3.2 and 3.3 above;
d) Seller on the one hand and Purchaser on the other hand
shall have obtained all appropriate authorisations and
approvals (if and to the extent required) from any
governmental, administrative or judicial authority (a
"Governmental Authority") with respect to the execution
of this Agreement and the completion of the
transactions contemplated hereby and such approval
shall not place any materially undue or commercially
burdensome provisions on the Company;
e) any and all transactions and conditions contemplated by
this Agreement to be completed and satisfied on or
prior to Closing shall have been so completed and
satisfied; and
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f) Purchaser shall not be obliged to complete the purchase
of the Shares agreed to be acquired hereunder unless
(x) the purchase of all such Shares is completed
simultaneously and (y) simultaneously therewith, the
transactions contemplated by the Brittany Insurance
Company Limited ("BICL") Purchase Agreement are
consummated.
Each of the Parties shall use its reasonable efforts to
ensure or procure the satisfaction of the above conditions as
soon as practicable after the date hereof.
The Parties hereby acknowledge and agree that no Party shall
have any liability or obligation to the other in the event
that the transactions contemplated hereby shall not be
completed because of the failure of any of the foregoing
conditions to have been satisfied on or prior to the Closing,
except where such failure results from a breach by any Party
of any of the provisions of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
4.1. Organisation and Standing
Purchaser is a corporation duly organised, validly existing
and in good standing under Bermuda law and has full corporate
power and authority to conduct all of the activities being
conducted by it.
4.2. Authorities
Purchaser has full power and authority to execute and deliver
and to perform its obligations under this Agreement. This
Agreement will constitute, when executed and delivered by
Purchaser, the valid and binding obligation of Purchaser.
4.3. Non-Contravention
The execution, delivery and performance by Purchaser of
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this Agreement and the completion of the transactions
contemplated hereby: (i) will not violate or conflict with
the Certificate of Incorporation or the constitutive
documents of Purchaser; (ii) will not conflict with, violate
or result in a breach of any of the terms, conditions or
provisions of any law, regulation, order, or injunction of
any governmental entity to which Purchaser is subject; and
(iii) will not conflict with, violate or result in a material
breach of, or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to
which Purchaser is a party.
5. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
5.1. Organisation and Standing
Seller and the Company each is a corporation duly organised,
validly existing and in good standing under its jurisdiction
of incorporation and each has full corporate power and
authority to conduct all of the activities being conducted by
each of them.
5.2. Authorities
Seller has full power and authority to execute and deliver
and to perform its obligations under this Agreement. This
Agreement will constitute, when executed and delivered by
Seller, the valid and binding obligation of Seller.
5.3. Non-Contravention
The execution, delivery and performance by Seller of this
Agreement and the completion of the transactions contemplated
hereby: (i) will not violate or conflict with its Certificate
of Incorporation or the constitutive documents of it or
Company; (ii) will not conflict with, violate or result in a
breach of any of the terms, conditions or provisions of any
law, regulation, order, or injunction of any governmental
entity to which it or Company is subject; and (iii) will not
conflict with, violate or result in a material breach of, or
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constitute a default under any of the terms, conditions or
provisions of any agreement or instrument to which it or
Company is a party.
5.4. Capitalisation
The Company has an authorised share capital of BEF
1,500,000,000 divided into 150,000 shares having a par value
of BEF 10,000 all of which are issued.
All of the Shares transferred hereunder are duly authorised
and validly issued, fully paid and non-assessable.
5.5. Ownership.
Seller is the legal and beneficial owner of the Shares
representing the whole of the issued share capital of the
Company, such Shares being free and clear of all security
interests, liens, pledges, claims, charges, options, rights
of first refusal, mortgages, restrictions, limitations,
obligations or commitments of any kind, whether written or
oral.
5.6. PetroFina Group Business.
All exposures and liabilities arising out of or relating to
the issuance of insurance / reinsurance policies covering the
petroleum and other activities, risks and exposures related
to the business carried out by any member of the PetroFina
Group, (with the exception of all non-PetroFina Group
business underwritten directly or indirectly by any member of
the PetroFina Group which has been transferred to the Company
prior to December 31, 1999 and reflected in the 1999
Financial Statements), have been assigned to Fina Insurance
S.A., a subsidiary of PetroFina S.A. before 31 December 1999
(with full release in favour of the Company). Notwithstanding
anything to the contrary the Company shall remain liable for
any risks and liabilities related to the PetroFina Group that
have been reinsured by the Company as a result of the
Company's writing certain facultative and/or treaty
reinsurance in the ordinary course of the Company's business
of writing third party reinsurance on arm's length terms;
provided that neither the purpose nor intent of such
reinsurance was, directly or indirectly, to have
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PetroFina Group risks reinsured by the Company.
For the purposes of this Clause "Petrofina Group" shall mean
any and all entities directly or indirectly controlling,
controlled by or under common control with PetroFina S.A.
including any joint ventures which at any point of time have
been construed or declared to the insurance / reinsurance
carriers as forming part of the PetroFina Group.
5.7. Liability
The Seller declares to sell and the Purchaser accepts to
purchase the Shares of the Seller "as is" and without any
further guarantee or indemnity not expressly contained
herein.
5.8. Financial Statements.
Annex I sets forth the financial statements of the Company
(the "Financial Statements") that have been provided to
Purchaser. Such Financial Statements have been properly
audited and are unqualified.
5.9. Investments
All of the investment assets of the Company are (and shall
remain until the Closing) investments of the type and
duration listed in Annex II and have as of March 31, 2000 the
fair value as so indicated on such Annex.
5.10. Accuracy of Information.
To the best knowledge and belief of Seller, as of the date
hereof, all information furnished by or on behalf of the
Company or Seller to Purchaser or any of its agents or
advisors for purposes of this Agreement or the transactions
contemplated hereby, when considered as a whole, is true and
accurate in all material respects and not incomplete by
omitting to state any material fact necessary to make such
information not misleading.
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5.11 Brokers.
There is no broker, finder or investment bank or other agent
entitled to any fee or commission in connection with the
transactions contemplated hereby for which the Company would
be liable or responsible.
6. COVENANTS OF THE PARTIES
6.1. Conduct of Business.
From 31 December 1999 until the Closing, Seller has caused,
and will continue to cause, the Company to conduct its
operations in the ordinary course of business consistent with
past practice and the Company has not since December 31, 1999
and will not be permitted, directly or indirectly, to (a)
amend its organisational documents, (b) issue or sell any debt
or equity securities or incur indebtedness, (c) adopt a plan
of liquidation, merger or consolidation, (d) make any material
changes in its accounting or actuarial practices, (e) enter
into, modify, terminate or be in default under any material
contract except as set forth in Annex III or, (f) pay any
dividend or other distribution to its stockholders or make any
payment to Seller or any member of the Petrofina Group (as
defined in Clause 5.6) except as set forth in Annex III.
From March 31, 2000 until the Closing, Seller will not permit
Company to sell or liquidate any investments, or make
additional investments, without Purchaser's prior consent,
such consent not to be unreasonably withheld.
6.2. Access to Information.
From the date hereof until the Closing, Seller will, and will
cause the Company to, allow Purchaser and its officers,
employees, counsel, accountants, actuary, consultants, and
other authorised representatives to have full access to the
books, records, contracts, accountants, actuaries,
consultants, advisors, officers and employees of the Company,
at all reasonable times and upon reasonable notice, so as not
to interfere with the normal operation of the Company's
business.
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6.3. Further Assurances.
From and after the Closing, each of the parties hereto shall
co-operate with each other and use all reasonable efforts to
take all actions and to do all things necessary, proper or
advisable to give effect to the transactions contemplated
hereby.
6.4. Seller undertakes to indemnify Purchaser against losses or
expenses arising from (x) any and all tax claims, assessed by
any governmental authority or agency in any jurisdiction,
directly or exclusively assessed on PetroFina Group's
activities, made against the Company for the sole reason of
the Company's being part of the PetroFina Group and, (y) any
breach of Clause 5.6.
6.5. On the Closing Date all members of the board of directors of
the Company shall resign. At the next General Meeting of the
Company, Purchaser hereby undertakes to vote its shares or to
cause its representative to vote in such a manner that the
resigning directors of Seller in said Company are discharged,
as such, from all liability.
7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Representations and warranties made in Clauses 5.4 (Capitalisation),
5.5 (Ownership) and 5.6 (PetroFina Group business) shall survive the
Closing indefinitely.
All other representations and warranties shall terminate March 31,
2001. The tax covenant set out in Clause 6.4 shall survive until the
expiration of the applicable statutes of limitations.
Seller shall not be liable for any breach of Clause 5.10 unless the
damages and expenses for all such breaches exceeds USD 500,000 in
which case Seller shall be liable for all such damages and expenses in
excess of USD 500,000 but only up to an aggregate amount equal to 75%
of the Purchase Price.
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8. NOTICES
All notices or other communications which are required or permitted
hereunder shall be given in writing, by facsimile transmission or hand
delivered:
(a) If to Purchaser, to:
Attn.: The Company Secretary
Address: c/o Conyers, Xxxx & Xxxxxxx attention Xxxxxx Xxxxxx
Fax: (0) 000 000 0000
with a copy to Xxxxxx Xxxxxx Xxxxxxx,
00 Xxxx Xxxxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxx
Fax: (0) 000 000 0000
(b) If to Seller, to
Attn: c/o Risk Manager, DARAG (bureau 33G61)
Address: 0, xxxxx xx xx Xxxxxxx,
00000 Xxxxx La Defense
Fax: (0) 00 00 00 00
Communications shall be deemed to have been made upon delivery if by
registered mail, and upon receipt if by facsimile transmission or by
hand delivery, except that a facsimile transmission that is received
on a Saturday, Sunday or a public holiday in the country of receipt,
shall be deemed to have been made at the opening of business on the
first day following that which is not a Saturday, Sunday or public
holiday in such country.
9. INDEPENDENT ADVICE.
Without limiting any rights or obligations of the parties hereunder or
under the law of incorporation of Seller, each of the Parties hereto
acknowledges that it has been free to secure independent legal advice
as to the nature and effect of all of the provisions of this Agreement
and that it has either taken such independent advice or dispensed with
the necessity to do so and that all of the provisions of this
Agreement are fair and reasonable in all circumstances and are of the
overall intention of the Parties in connection with this Agreement.
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10. INVALIDITY
In the event that any provisions shall be found to be unenforceable,
the remaining provisions shall have full force and effect.
11. ENTIRE AGREEMENT
This Agreement and the documents referred to herein constitute the
whole agreement and understanding among the Parties relating to the
subject matter thereof and supersede any previous arrangement or
understanding among the Parties in relation thereto. Each of the
Parties acknowledges that it has not entered into this Agreement in
reliance on any statement or representation, whether or not made by
the other Party, except insofar as the same has been incorporated into
this Agreement. Except as otherwise provided herein, each of the
Parties irrevocably and unconditionally waives any right it may have
to claim damages and / or to rescind this Agreement by reason of any
misrepresentation (other than a wilful misrepresentation) not
contained in this Agreement.
12. COSTS
Each Party shall bear its own expenses in the preparation and
execution of this Agreement.
13. ASSIGNMENT
No Party shall assign or transfer or purport to assign or transfer any
of its rights or obligations under this Agreement without the prior
written consent of the other Party, except that Purchaser may assign
its rights, but not its obligations, under this Agreement to any of
its affiliates.
14. WAIVERS
The failure of either Party to require performance by the other Party
of any responsibility or obligation required by this Agreement shall in
no way effect the Party's right to require such performance at any time
thereafter. The waiver by a Party of a breach of any provision of this
Agreement by the other Party shall
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not constitute a waiver of any other breach of the same or any other
provision.
15. TERMINATION
15.1 Termination.
This Agreement may be terminated before the Closing by:
a. Purchaser, upon a material breach of any
representation, warranty, covenant or agreement on the
part of Seller contained herein, if such breach is not
cured within 15 days after notice thereof is delivered
by Purchaser;
b. Seller, upon a material breach of any representation,
warranty, covenant or agreement by Purchaser contained
herein, if such breach is not cured within 15 days
after notice thereof is delivered by Seller; or
c. Seller, on the on one hand, or Purchaser, on the other
hand, if the Closing has not occurred within three
months of the introduction of the request for approval
by the Belgian regulatory authorities for the sale and
purchase of CEAI, but in no event later than 30
September 2000; provided that such person has, or
persons have, not breached their obligations hereunder.
15.2 Effect of Termination.
If this Agreement is terminated pursuant to the provisions of
Section 15.1, such termination shall be without liability to
any Party hereto, except that termination of this Agreement
shall not relieve any Party hereto from liability for breach
prior to the date of such termination of any representation,
warranty, covenant or agreement contained herein.
16. GOVERNING LAW AND JURISDICTION
16.1 This Agreement shall be governed by and construed in
accordance with the laws of Belgium and the courts of
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Belgium will have jurisdiction in relation to any dispute
arising out of this Agreement or the transactions hereby
contemplated.
16.2 Each of the Parties hereto waives any right that it may have
to object to an action being brought in these courts, to
claim that the action has been brought in an inconvenient
forum or to claim that those courts do not have jurisdiction.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers, as of the date first above written.
This Agreement will be of no force and effect unless a signed copy hereof is
delivered by facsimile by Seller to Xxxx X. Xxxx, President, BH Acquisition
Limited at (000) 000-0000, at or before 5 p.m. New York City time, on
April 13, 2000.
/s/
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for and on behalf of
PETROFINA S.A. AND ETMOFINA S.A.
/s/
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for and on behalf of
BH ACQUISITION LIMITED