Share Purchase Agreement among Ms. Maria Carmen Sundblad de Perez Companc, Sudacia Sociedad Anonima, and Apco Argentina, Inc. dated October 23, 2002

Summary

This agreement is between Ms. Maria Carmen Sundblad de Perez Companc, Sudacia Sociedad Anonima, and Apco Argentina, Inc. Under the agreement, Apco agrees to purchase a total of 27,700 shares of voting common stock in Petrolera Perez Companc S.A. from the two sellers for a combined price of approximately $6.95 million. The shares will be transferred free of any claims or restrictions, and the transaction is set to close on the date of the agreement. The sellers confirm they have the authority to sell and that the shares are validly owned and transferable.

EX-10.(A) 3 d04342exv10wxay.txt SHARE PURCHASE AGREEMENT - -------------------------------------------------------------------------------- SHARE PURCHASE AGREEMENT BY AND AMONG MS. MARIA CARMEN SUNDBLAD DE PEREZ COMPANC, SUDACIA SOCIEDAD ANONIMA, AND APCO ARGENTINA, INC. DATED AS OF OCTOBER 23, 2002 - -------------------------------------------------------------------------------- -i- SHARE PURCHASE AGREEMENT SHARE PURCHASE AGREEMENT, dated as of October 23, 2002 ("Agreement") by and among Ms. MARIA CARMEN SUNDBLAD DE PEREZ COMPANC, an individual resident in Argentina ("Ms. Perez Companc"), SUDACIA SOCIEDAD ANONIMA., a sociedad anonima organized under the laws of Argentina ("Sudacia") and APCO ARGENTINA, INC., a Cayman Islands company ("Apco", together with Ms. Perez Companc and Sudacia, the "Parties", and each of them, individually, the "Party"). WHEREAS, pursuant to a certain letter-agreement executed among the shareholders of PETROLERA PEREZ COMPANC S.A. ("PPC") on August 12, 1968, Apco has exercised on September 11, 2002, its preferential right to acquire from Ms. Perez Companc 3,160 shares of voting common stock of PPC and to acquire from Sudacia 24,540 shares of voting common stock of PPC (collectively, the "Shares") proposed for transfer by Ms. Perez Companc and Sudacia (collectively, the "Selling Shareholders"); and WHEREAS, Apco and the Selling Shareholders desire to enter into this Agreement; NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. DEFINITIONS AND INTERPRETATIONS. The following terms will have the following meanings when used as capitalized in this Agreement. "Capital Stock" means any and all shares, interests, quotas, participation or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing. "Closing" means the consummation and completion of the purchase and sale of the Shares, the payment of the Purchase Price and all other actions or transactions to be completed and consummated by the Closing in accordance with this Agreement and/or applicable laws. "Closing Date" is defined in Section 2.3 below. "Consent" means any approval, consent, license, permit, registration, ratification, waiver, or other authorization (including any Governmental Authorization) issued, granted, given or otherwise made available "Contractual Obligation" means, as to any Person, any provision of any security issued by any such Person or any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. "Debt" of any Person means any and all indebtedness, Obligations or liabilities of such Person created or arising under any and all payments, notes, bonds, debentures, loans or other similar instruments. "Encumbrance" means any charge, claim, mortgage, servitude, marital property interest, condition, equitable interest, Lien, option, pledge, encumbrance, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership, other than those that may exist in favor of any party hereto (if any). "Governmental Authority" means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Lien" means any lien, security interest or other charge or Encumbrance of any kind, or any other type of preferential arrangement, including without limitation, the lien or retained security title of a conditional vendor, any easement, right of way or other encumbrance on title to real property. "Obligation" means with respect to any Person, any payment, performance or other obligations of such Person of any kind, including, without limitation, any liability on any claim arising from, without limitation, the obligation to pay principal, interest, charges, expenses, fees, attorneys' fees and disbursements, indemnities and other amounts payable by any party under this Agreement. "Person" means an individual, partnership, corporation, limited liability company, trust, joint venture or other entity, or a government or any political subdivision or agency thereof. "Requirement of Law" means any applicable constitution, law, statute, treaty, rule, regulation, ordinance, decree, binding case law, order, injunction, notice, approval, permit, license, authorization or judgment, including, without limitation, any consolidations, amendments, re-enactments, extensions or replacements of any of the foregoing. "Selling Shareholders" is defined in the Recitals of this Agreement. "Shareholders Agreement" shall have the meaning set forth in Section 3.1.(b) hereof. "Shares" is defined in the Recitals of this Agreement. SECTION 2. PURCHASE OF PPC CAPITAL STOCK. 2.1 PURCHASED SHARES. Subject to the terms and conditions of this Agreement, Apco hereby agrees to purchase from the Selling Shareholders, and the Selling Shareholders hereby agree to sell to Apco, all of the Shares. -2- 2.2 PURCHASE PRICE. The purchase price (the "Purchase Price") for the Shares will be US$792,603.57 for the Shares owned by Ms. Sundblad and US$6,155,218.86 for the Shares owned by Sudacia, payable as set forth in Section 5.1(c). 2.3 CLOSING. The Closing will take place at the offices of Bruchou, Fernandez Madero, Lombardi & Mitrani, located at Ing. Enrique Butty 275, 12th floor, City of Buenos Aires, Argentina, on the same date hereof after the execution of this Agreement (the "Closing Date"). SECTION 3. REPRESENTATIONS AND WARRANTIES. 3.1 THE SELLING SHAREHOLDERS REPRESENTATIONS AND WARRANTIES. Each of the Selling Shareholders (as applicable to it below) severally represents and warrants to Apco as of the date of this Agreement and the Closing that: (a) Due Incorporation. Sudacia is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has the power and authority and the legal right to enter into and deliver this Agreement and to perform its obligations hereunder; (b) Shares. All of the Shares to be sold by each Selling Shareholder to Apco have been validly issued to such Selling Shareholder, are fully paid and non assessable, all in compliance with all applicable Requirements of Law, and are owned by such Selling Shareholder, in the amount specified, in the first Recital hereto and are free and clear of all Encumbrances whatsoever. Immediately after the Closing, the Shares in the aggregate will represent 5.54% of the outstanding capital stock of PPC, which total will include the number of all common and preferred stock issued or otherwise issuable from other forms of equity or of Debt (if any), including other preferred shares, warrants, convertible Debt and equity and options to purchase in PPC. The Shares shall be transferred directly to Apco at Closing by the Selling Shareholders, free and clear of all Encumbrances and subject to the provisions of the September 6, 1974 shareholders agreement (the "Shareholders Agreement"), and upon such transfer Apco will be the sole record and beneficial owner of the Shares; (c) Due Authorization, No Violations or Defaults. Each Selling Shareholder has the power and authority and the legal right to execute and deliver and perform her or its obligations under this Agreement, and has taken all necessary action to authorize their execution, delivery and performance of this Agreement to which such Selling Shareholder is a party; (d) Due Execution and Delivery; Enforceability. This Agreement has been duly executed and delivered by the Selling Shareholders and is the legal, valid and binding obligation of such Selling Shareholders, enforceable against such Selling Shareholders in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; (e) No Violation. The execution, delivery and performance of this Agreement will not violate in any material respect any provision of any Requirement of Law or Contractual Obligation of such Selling Shareholders and will not result in or require the creation or -3- imposition of any Encumbrance on the Shares or any of the properties or revenues of such Selling Shareholder pursuant to any such Requirement of Law or Contractual Obligation of such Selling Shareholder; (f) Governmental Authorizations. No material consent or authorization of, filing with or other act by or in respect of any Governmental Authority is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement. 3.2 APCO REPRESENTATIONS AND WARRANTIES. Apco represents and warrants to the Selling Shareholders as of the date of the Agreement and the Closing that: (a) Due Incorporation. Apco is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has the power and authority and the legal right to enter into and deliver this Agreement and to perform its obligations hereunder; (b) Due Authorization, No Violations or Defaults. Apco has the power and authority and the legal right to execute and deliver and perform its obligations under this Agreement, and has taken all necessary action to authorize the execution, delivery and performance hereof; (c) Due Execution and Delivery; Enforceability. This Agreement has been duly executed and delivered by Apco and is the legal, valid and binding obligation of Apco, enforceable against Apco in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; (d) No Violation. The execution, delivery and performance of this Agreement will not violate in any material respect any provision of any Requirement of Law or Contractual Obligation of Apco; (e) Governmental Authorizations. No material consent or authorization of, filing with or other act by or in respect of any arbitrator or Governmental Authority is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement; (f) Reservation of Rights. Apco reserves its claim to conversion of its holding of preferred, non-voting PPC shares into ordinary, voting shares, based on agreements that Apco alleges exist with the PPC shareholders in this regard. SECTION 4. CONDITIONS PRECEDENT TO APCO'S OBLIGATION TO CLOSE. Apco's obligation to purchase the Shares and to take the other actions required to be taken by Apco at the Closing are subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any of which may be waived by Apco, in whole or in part): 4.1 SELLING SHAREHOLDER CLOSING OBLIGATIONS. The following acts will be completed at Closing (it being understood that no action to be taken at the Closing and no document to be -4- executed or delivered at Closing shall be deemed taken, executed or delivered until all have been taken, executed and delivered): (a) Government Approvals. On the Closing Date or immediately thereafter, if required, the Selling Shareholders, and/or PPC, shall give notice to all applicable Governmental Authorities in Argentina of the transfer of the Shares and other matters contemplated hereby, as required by any Requirement of Law, and (b) Share Certificates; Stock Ledger. The Selling Shareholders shall deliver certificates for the Shares to Apco together with a copy of a duly executed stock transfer letter requesting PPC to reflect the transfer of the Shares to Apco on the Stock Ledger of PPC and to issue new share certificates in the name of Apco. 4.2 ACCURACY OF REPRESENTATIONS. All of the representations and warranties of the Selling Shareholders in this Agreement must be accurate in all material respects as of the Closing Date. 4.3 THE SELLING SHAREHOLDERS' PERFORMANCE. All of the covenants and obligations that the Selling Shareholders are required to perform or to comply with pursuant to this Agreement on or prior to the Closing, and each of these covenants and obligations, must have been duly performed and complied with in all material respects. 4.4 NO PROCEEDINGS. Since the date of this Agreement, there must not have been commenced or threatened in writing against Apco, or against any entity affiliated with Apco, any judicial, administrative or arbitral proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, this Agreement or any of the transactions contemplated hereby, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of this Agreement or the transactions contemplated hereby. 4.5 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS. There must not have been made or threatened in writing by any Person, other than the Selling Shareholders, any claim asserting that such Person, rather than a Selling Shareholder, (a) is the holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, or any voting, equity, or other ownership interest in, PPC or the Shares, or (b) is entitled to all or any portion of the Purchase Price payable for the Shares as a result of rights or interests the may claim over the Shares. SECTION 5. CONDITIONS PRECEDENT TO THE SELLING SHAREHOLDERS' OBLIGATION TO CLOSE. The Selling Shareholders' obligation to sell the Shares and to take the other actions required to be taken by the Selling Shareholders at the Closing are subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any of which may be waived by the Selling Shareholders, in whole or in part): 5.1 APCO'S CLOSING OBLIGATIONS. The following acts will be completed at Closing (it being understood that no action to be taken at the Closing and no document to be executed or delivered at Closing shall be deemed taken, executed or delivered until all have been taken, executed and delivered): -5- (a) Government Approvals. On the Closing Date or immediately thereafter, if required, Apco and/or PPC, shall give notice to all applicable Governmental Authorities in Argentina of the transfer of the Shares and other matters contemplated hereby, as required by any Requirement of Law. 5.2 ACCURACY OF REPRESENTATIONS. All of the representations and warranties of Apco in this Agreement must be accurate in all material respects as of the Closing Date. 5.3 APCO'S PERFORMANCE. All of the covenants and obligations that Apco is required to perform or to comply with pursuant to this Agreement on or prior to the Closing, and each of these covenants and obligations, must have been duly performed and complied with in all material respects. 5.4 NO PROCEEDINGS. Since the date of this Agreement, there must not have been commenced or threatened in writing against the Selling Shareholders, or against any entity affiliated with any of them, any judicial, administrative or arbitral proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, this Agreement or any of the transactions contemplated hereby, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of this Agreement or the transactions contemplated hereby. 5.5 PURCHASE PRICE. Simultaneously with the transfer of the Shares at Closing Apco will deliver the Purchase Price into the bank account/s previously notified in writing to Apco by the Selling Shareholders. SECTION 6. TERMINATION. 6.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or at the Closing, be terminated: (a) (i) by Apco if a material breach of any provision of this Agreement has been committed by the Selling Shareholders and such breach has not been waived; or (ii) by the Selling Shareholders if a material breach of any provision of this Agreement has been committed by Apco and such breach has not been waived; (b) (i) by Apco if any of the conditions in Section 4 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Apco to comply with its obligations under this Agreement) and Apco has not waived such condition on or before the Closing Date; or (ii) by the Selling Shareholders if the conditions in Section 5 have not been satisfied or if satisfaction of such a condition is or becomes impossible (other than through the failure of the Selling Shareholders to comply with their obligations under this Agreement) and the Selling Shareholders have not waived such condition on or before the Closing Date; (c) by mutual written consent of Apco and the Selling Shareholders signed by their respective authorized Representatives; or 6.2 EFFECT OF TERMINATION. Each party's right of termination under Section 6.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of such -6- right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 6.1, all further obligations of the parties under this Agreement will terminate, except that (i) the obligations in Sections 7 and 11 will survive; and (ii) no such termination shall relieve any party hereto of any liability for any breach of this Agreement prior to the date of such termination. SECTION 7. INDEMNIFICATION; REMEDY. 7.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE. All representations and warranties herein will survive the Closing for five (5) years. The 5-year limitation period provided in this Section 7.1 shall not apply to Section 3.2(f) of this Agreement, which shall survive indefinitely. 7.2 INDEMNIFICATION AND PAYMENT OF LOSS BY SELLING SHAREHOLDERS. Each of the Selling Shareholders will indemnify and hold harmless each Apco and its officers, directors and representatives (collectively, the "Apco Indemnified Persons") for, and will pay to the Apco Indemnified Persons the amount of any loss, cost or expense arising from or in connection with: (a) any material inaccuracy on the date hereof of any representation or warranty made by the Selling Shareholders in this Agreement; and (b) any material breach by the Selling Shareholders of any obligation of the Selling Shareholders in this Agreement. 7.3 INDEMNIFICATION AND PAYMENT OF LOSS BY APCO. Apco will indemnify and hold harmless the Selling Shareholders and their officers, directors and representatives (collectively, the "Selling Shareholder Indemnified Persons", and together with the Apco Indemnified Persons, the "Indemnified Persons") for, and will pay to the Selling Shareholder Indemnified Persons the amount of any loss, cost or expense arising from or in connection with: (a) any material inaccuracy on the date hereof of any representation or warranty made by Apco in this Agreement; or (b) any material breach by Apco of any obligation of Apco in this Agreement. 7.4 REMEDIES NOT EXCLUSIVE. If the Selling Shareholders have not complied with their obligations hereunder, including the obligation to transfer the Shares as contemplated hereby, then Apco may seek specific performance thereof to the fullest extent permitted by applicable Argentine law. If Apco has not complied with its obligations hereunder, including the obligation to pay the Purchase Price as provided in this Agreement, then the Selling Shareholders may seek damages and reimbursement of expenses and costs to the fullest extent permitted by applicable Argentine law. 7.5 PROCEDURE FOR INDEMNIFICATION. If any claim or demand is asserted against an Indemnified Person in respect of which such Indemnified Person may be entitled to indemnification under this Agreement, written notice of such claim or demand shall promptly be given to the Indemnifying Person. The Indemnified Person shall have the right, but not the obligation, to assume the entire control of the defense, compromise, or settlement of the matter, including, at the Indemnifying Person expense, employment of counsel of the Indemnified -7- Person's choice. Any settlement or compromise of a matter by the Indemnifying Person, if the Indemnified Person has not made the election herein, shall include a full release of claims against the Indemnified Person which has arisen out of the indemnified claim or demand. SECTION 8. NOTICES. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when actually received, and may be (a) delivered by hand, (b) sent by telecopier (with written confirmation of receipt) or (c) sent by an internationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties): If to Apco, to: Maipu 1300, piso 8 degrees (C1006ACT) Buenos Aires Attention: Mr. Ernesto A. Hermo c.c. Allende & Brea, Maipu 1300, piso 10 C1006ACT Buenos Aires Attention: Mr. Michael R. Rattagan If to The Selling Shareholders, to: Sarmiento 2895 Loma Verde (B1625XAF) Escobar - Provincia de Buenos Aires Attention: Messrs. Carlos Cupi and Matias Bauer c.c. Bruchou, Fernandez Madero, Lombardi & Mitrani, Ing. Enrique Butty 275, piso 12 C1001AFA Buenos Aires Attention: Mr. Jaime Fernandez Madero SECTION 9. JURISDICTION. This Agreement shall be enforced in the commercial ordinary courts of the city of Buenos Aires Argentina. Final judgment issued by such courts shall be conclusive. -8- SECTION 10. MISCELLANEOUS. (a) Each Party to this Agreement will bear its respective expenses incurred in connection with the preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of agents, representatives, counsel, and accountants, and none of the Selling Shareholders shall cause PPC to bear any of its expenses incurred by it, either prior to or following Closing. (b) This Agreement supersedes all prior agreements and communications between the parties with respect to this sale. (c) This Agreement may not be amended except by a written agreement of the parties. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the agreements or documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of such claim or right unless in writing signed by such party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement. (d) Each party to this Agreement agrees to execute, acknowledge, deliver file and record such further certificates, amendments, instruments or documents, and to do all such other acts and things, as may be required by law or as may be necessary or advisable to carry out the intent and purpose of this Agreement. (e) All headings and captions contained in this Agreement are inserted for convenience only and shall not be deemed part of this Agreement. (f) This Agreement shall be governed and construed in accordance with the laws of Argentina. (g) This Agreement may be signed in one or more counterpart copies, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. (h) Every provision of this Agreement is intended to be several. The invalidity and unenforceability of any particular provision of this Agreement in any jurisdiction shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. (i) Any taxes or other charges in connection with the transfer of the Shares or any transaction contemplated hereby shall be borne by the Party obligated in respect of such tax or other charge. The Parties agree and understand that there is no income or other tax withholding -9- in Argentina required in connection with the payment of the Purchase Price to the Selling Shareholders, provided, however, the Parties further agree that, in the event that any such requirement for withholding or the payment of such tax is assessed or asserted by any Government Authority in respect of the payment of the Purchase Price, such withholding or payment shall be the obligation of the Selling Shareholders. (j) This Agreement shall be binding upon the parties hereto, their respective successors, executors, administrators, legal representatives, heirs and legal assigns and shall inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective successors, executors, administrators, legal representatives, heirs and legal assigns. Other than with respect to Section 11 (b) hereof, no person other than the parties hereto and their respective successors, executors, administrators, legal representatives, heirs and legal assigns, shall have any rights or claims under this Agreement. (k) This Agreement constitutes the entire agreement of the parties hereto on the subject matter hereof, and can only be amended by a written instrument signed by all of the parties hereto. No party may assign any of its rights under this Agreement without the prior written consent of the other parties. Nothing expressed or referred to in this Agreement will be construed to give any person, other than the parties hereto, any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and assigns. (l) The parties will use their best efforts to coordinate and harmonize any public announcement or similar publicity with respect to this Agreement or the transactions contemplated hereby. -10- IN WITNESS WHEREOF, the parties hereto, individually or acting through their duly authorized representatives, have caused this Agreement to be duly executed as of the date first above written. /s/* APCO Argentina Inc. --------------------------------------------- APCO Argentina Inc. /s/** Ms. Maria Carmen Sundblad de Perez Companc --------------------------------------------- Ms. Maria Carmen Sundblad de Perez Companc /s/** Sudacia S.A. --------------------------------------------- Sudacia S.A. The Spouse of Ms. MARIA CARMEN SUNDBLAD DE PEREZ COMPANC expresses hereunder his consent to the execution of this Agreement as required by Section 1277 of Argentina's Civil Code: /s/** Ms. Maria Carmen Sundblad de Perez Companc --------------------------------------------- Ms. Maria Carmen Sundblad de Perez Companc * By:/s/ Thomas Bueno ------------------------------------------- Tomas Bueno, President and C.O.O. ** By: /s/ Jorge Perez Companc and Luis Perez Companc ------------------------------------------------------------- Jorge Perez Companc and Luis Perez Companc, Attorneys in-fact -11-