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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-3
(Amendment No. 3)
(Final)
RULE 13E-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934 and
Rule 13e-3 ((s)240.13e-3) Thereunder)
Fina, Inc.
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(Name of Issuer)
PetroFina S.A.,
American Petrofina Holding Company,
Petrofina Delaware, Incorporated,
New Fina, Inc.
Fina, Inc.
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(Name of Person(s) Filing Statement)
Class A Common Stock, $.50 par value per share
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(Title of Class of Securities)
028861102
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(CUSIP Number of Class of Securities)
Francois Vincke Cullen M. Godfrey
PetroFina S.A. Fina, Inc.
52 Rue de l'Industrie Fina Plaza
B-1040 Brussels, Belgium 8350 North Central Expressway
Dallas, TX 75806
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(Name, Address and Telephone Number of Persons Authorized
To Receive Notices and Communications on Behalf of Person(s)
Filing Statement)
With Copies To:
Richard W. Cass Allen Finkelson
Wilmer, Cutler & Pickering Cravath, Swaine & Moore
2445 M Street, N.W. Worldwide Plaza
Washington, DC 20037-1420 825 Fifth Avenue
(202) 663-6000 New York, NY 10019-7475
(212) 474-1000
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This statement is filed in connection with (check the appropriate box):
a. [_] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [X] The filing of a registration statement under the Securities Act of 1933.
c. [_] A tender offer.
d. [_] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: [_]
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (the
"Schedule 13E-3") is being filed by (i) PetroFina S.A., a societe
anonyme/naamloze vennootschap organized under the laws of the Kingdom of Belgium
("Parent"), (ii) American Petrofina Holding Company, a Delaware corporation and
wholly-owned subsidiary of parent ("APHC"), (iii) Petrofina Delaware,
Incorporated, a Delaware corporation and an indirect, wholly owned subsidiary of
Parent ("PDI"), (iv) New Fina, Inc., a Delaware corporation ("Mergeco") and (v)
Fina, Inc., a Delaware corporation (the "Company"), pursuant to Section
13(e) of the Securities Exchange Act of 1934, as amended, and Rule 13e-3
promulgated thereunder by the Securities and Exchange Commission (the
"Commission") in connection with the merger of Mergeco with and into the
Company, with the Company being the surviving corporation, and each of the
issued and outstanding shares (the "Shares") of Class A common stock, par value
$.50 per share, of the Company not already owned by Parent or any of its
affiliates, upon the terms and subject to the conditions set forth in that
certain Agreement and Plan of Merger, dated as of February 17, 1998, as amended
by the First Amendment to Agreement and Plan of Merger, dated as of March 31,
1998 (as amended, the "Merger Agreement"), among Parent, PDI, Mergeco and the
Company.
This final amendment to the Schedule 13E-3 (the "Final Amendment")
reports the consummation of the transaction contemplated by the Merger
Agreement following approval thereof by the stockholders of the Company at a
special meeting held on August 5, 1998. On August 5, 1998, Mergeco was merged
with and into the Company. The Company was the surviving entity. Each share of
common stock, par value $.50 per share (the "Common Stock"), of the Company
issued and outstanding immediately prior to the effective time (the "Effective
Time") of the Merger (other than Common Stock owned by PetroFina and its
affiliates, treasury shares held by the Company immediately prior to the
Effective Time and any shares of Common Stock owned by stockholders who
perfected their dissenters rights (the "Dissenting Shares")) was converted into
the right to receive the Merger Consideration, pursuant to the terms of the
Merger Agreement. After the Effective Time, PetroFina indirectly owns 100% of
the outstanding Common Stock.
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ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION
Item 1 of the Schedule 13-E-3 is hereby amended and supplemented
as follows:
(c) Upon consummation of the Merger, the Common Stock ceased to be
qualified for listing on the American Stock Exchange and became eligible for
termination of registration pursuant to the Rules and Regulations under the
Securities Exchange Act of 1934, as amended. The Company will file with the
Securities and Exchange Commission a Form 15 with respect to the termination
of registration of the Common Stock.
(f) The Introduction to this Final Amendment is incorporated herein by
reference.
ITEM 3. PAST CONTRACTS, TRANSACTIONS OR NEGOTIATIONS
Item 3 of the Schedule 13E-3 is hereby amended and supplemented as
follows:
(a)(2) The Introduction to the Final Amendment is incorporated by
reference herein.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
Item 5 of the Schedule 13E-3 is hereby amended and supplemented as
follows:
(a) On August 5, 1998, the merger of Mergeco with and into the Company
became effective. The Merger was consummated by the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware on August 5,
1998.
(c) At the Effective Time, the existing members of the Board of
Directors of Mergeco became the members of the Board of Directors of the
Surviving Corporation.
(f); (g) Following the closing of the Merger, the Company will file
with the Securities and Exchange Commission a Form 15 with respect to the
termination of registration of the Common Stock. The Company's obligation to
file reports pursuant to the Securities Exchange Act of 1934, as amended, will
be suspended immediately upon filing of the Form 15.
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ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
Item 17 is hereby supplemented as follows:
(d)(6) Press Release issued by the Company on August 5, 1998.
(d)(7) Press Release issued by Parent on August 5, 1998.
(d)(8) Certificate of Merger dated August 5, 1998.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, each of
the undersigned hereby certifies that the information set forth in this
statement is true, complete and correct.
August 5, 1998.
PetroFina S.A.
By: /s/ FRANCOIS CORNELIS
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Name: Francois Cornelis
Title: Chief Executive Officer and
Managing Director
By: /s/ MICHEL-MARC DELCOMMUNE
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Name: Michel-Marc Delcommune
Title: Executive Director, Corporate
Finance
American Petrofina Holding Company
By: /s/ FRANCOIS CORNELIS
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Name: Francois Cornelis
Title: President
Petrofina Delaware, Incorporated
By: /s/ FRANCOIS CORNELIS
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Name: Francois Cornelis
Title: President
Fina, Inc.
By: /s/ M. CULLEN GODFREY
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Name: M. Cullen Godfrey
Title: Secretary
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New Fina, Inc.
By: /s/ FRANCOIS CORNELIS
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Name: Francois Cornelis
Title: President
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(d)(6) Press Release issued by the Company August 5, 1998.
(d)(7) Press Release issued by Parent August 5, 1998.
(d)(8) Certificate of Merger dated August 5, 1998.
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EXHIBIT 99(d)(6)
FOR IMMEDIATE RELEASE:
PETROFINA-FINA, INC. MERGER OPENS UP NEW PROSPECTS FOR THE GROUP
A Special Meeting of the Shareholders of FINA, Inc. was held in Dallas on
Wednesday, August 5, 1998, where the final merger agreement, under the terms of
which FINA, Inc. now becomes a wholly-owned subsidiary of PetroFina, was
approved.
The merger provides the PetroFina Group new opportunities to further develop its
global activities, streamline its structures, and concentrate on growth
prospects.
FINA, Inc. shares will not trade on the American Stock Exchange (AMEX)
after today. The Bearer Depositary Receipts (BDRs) of FINA, Inc. will also be
delisted from the Brussels Stock Exchange effective August 6, 1998.
The registered shareholders of FINA, Inc., other than PetroFina and its
subsidiaries, will receive written instructions within the next few days from
Citibank, N.A. describing the procedures for the conversion of each FINA, Inc.
share into a right to receive US $60 and a warrant entitling them to receive
nine-tenths of an American Depositary Share (ADS) at an exercise price of US
$42.25 per ADS. One ADS represents one-tenths of a PetroFina ordinary share.
The warrants may be exercised between August 6, 1998 and August 5, 2003. They
have been accepted for listing on The New York Stock Exchange (NYSE:FIN WS)
where they may be traded throughout the exercise period.
PetroFina S.A. (NYSE: FIN) is an integrated oil petrochemical group, with
headquarters in Brussels, Belgium. In 1997, its sales and other operating
revenues rose to US $20.3 billion (BEF 727 billion) while those of FINA, Inc.
Dallas, Texas, reached US $4.4 billion (BEF 157 billion).
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EXHIBIT 99(d)(7)
PETROFINA S.A.
5th August 1998
Public Relations & Communication
PRESS RELEASE
PETROFINA-FINA, INC. MERGER OPENS UP NEW PROSPECTS FOR THE GROUP
A Special Meeting of the Shareholders of Fina, Inc. was held in Dallas on
Wednesday August 5, 1998 where the final merger agreement under the terms of
which Fina, Inc. now becomes a wholly-owned subsidiary of PetroFina, was
approved.
The merger provides the PetroFina Group new opportunities to further develop
its global activities, streamline its structures, and concentrate on growth
prospects.
Fina, Inc. shares will not trade on the American Stock Exchange (AMEX) after
today. The Bearer Depositary Receipts (BDRs) of Fina, Inc. will also be
delisted from the Brussels Stock Exchange effective August 6, 1998.
The registered shareholders of Fina, Inc., other than PetroFina and its
subsidiaries, will receive written instructions within the next few days from
Citibank, N.A. describing the practical procedures for the conversion of each
Fina, Inc. share into a right to receive USD 60 and a warrant entitling them to
receive nine-tenths of an American Depositary Share (ADS) at an exercise price
of USD 42.25 per ADS. One ADS represents one tenth of a PetroFina ordinary
share.
Holders of BDRs of Fina, Inc., with effect from August 6, should contact
following banks: GB - BBL - BIL - Banque Generale du Luxembourg to arrange for
the conversion of their BDRs. Upon presentation of one BDR, they will receive
the sum of USD 60 and a warrant allowing them to receive nine tenths of an ADS
at an exercise price of USD 42.25 per ADS. The warrant will be allocated to
them in the form of an account registration.
The warrants may be exercised between August 6, 1998 and August 5, 2003. They
have been accepted for listing on The New York Stock Exchange (NYSE:FINws),
where they may be traded throughout the exercise period.
The proxy statement prospectus (F-4) relating to the merger is available on
request from the aforementioned banks.
PetroFina S.A. (NYSE:FIN) is an integrated oil and petrochemical group, with
headquarters in Brussels, Belgium. In 1997, its sales and other operating
revenues rose to BEF 727 billion (USD 20.3 billion) while those of Fina, Inc.
Dallas, Texas, reached USD 4.4 billion (BEF 157 billion).
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CERTIFICATE OF MERGER
OF
FINA, INC.
AND
NEW FINA, INC.
It is hereby certified that:
1. The constituent business corporations participating in the merger
herein certified are:
i. New Fina, Inc., which is incorporated under the laws
of the State of Delaware; and
ii. Fina, Inc., which is incorporated under the laws of the
State of Delaware.
2. An Agreement and Plan of Merger has been approved, adopted,
certified, executed, and acknowledged by each of the aforesaid constituent
corporations in accordance with the provisions of subsection (c) of Section 251
of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein
certified is Fina, Inc., which will continue its existence as said surviving
corporation under its present name upon the effective date of said merger
pursuant to the provisions of the General Corporation Law of the State of
Delaware.
4. The Certificate of Incorporation of Fina, Inc., is hereby amended
in its entirety to read as Annex A attached hereto, until amended and changed
pursuant to the provisions of the General Corporation Law of the State of
Delaware.
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5. The executed Agreement and Plan of Merger between the aforesaid
constituent corporations is on file at the principal place of business of the
aforesaid surviving corporation, the address of which is as follows:
P.O. Box 2159
Dallas, Texas 75221
6. A copy of the aforesaid Agreement and Plan of Merger will be
furnished by the aforesaid surviving corporation, on request, and without cost,
to any stockholder of each of the aforesaid constituent corporations.
Dated: August 5, 1998 FINA, INC.
By: /s/ RON W. HADDOCK
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Its: President
Dated: August 5, 1998 NEW FINA, INC.
By: /s/ FRANCOIS CORNELIS
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Its: President
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ANNEX A
FINA, INC.
(a Delaware corporation)
CERTIFICATE OF INCORPORATION
1. The name of the Corporation is: Fina, Inc.
2. The address of the Corporation's registered office in the State
of Delaware is 1013 Centre Road in the City of Wilmington, County of New
Castle. The name of the Corporation's registered agent is the Corporation
Service Company.
3. The nature of the business or purpose to be conducted or promoted
is to engage in any lawful activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock that the Corporation shall
have authority to issue is one thousand (1000), all of which shall be common
stock of one class, par value of one cent ($.01) per share, amounting in the
aggregate to par value of ten dollars ($10.00).
5. The name and mailing address of the incorporator are as follows:
Name Mailing Address
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Peter O.A. Solbert RFD 3, Huntington, NY
David A. Lindsay RFD 3, Huntington, NY
Franklin E. Parker III Washington Corner Road, Mendham, NJ
6. Elections of directors of the Corporation need not be by written
ballot unless the bylaws so provide.
7. The Corporation shall be managed by or under the direction of the
Board of Directors which shall exercise all powers conferred under the laws of
Delaware.
8. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt the bylaws of
the Corporation and to amend or repeal any provision thereof except a provision
adopted by the stockholders and declared as part of such adoption to be
amendable or repealable only by the stockholders.
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9. The bylaws of the Corporation may contain, or the holders of any
or all of the shares of stock in the Corporation may agree among themselves or
with the Corporation to, any restriction or limitation on the sale, transfer,
assignment, pledge, hypothecation, or registration of transfer of the shares of
stock of the Corporation or any part thereof imposed in a manner permitted by
Section 202 of the General Corporation Law of Delaware, or any successor
provision of the laws of Delaware relating to such restrictions or limitations,
and the Corporation shall thereupon observe and carry out on its part the terms
of any such restriction or limitation and shall refuse to recognize any sale,
transfer, assignment, pledge, hypothecation, or registration of transfer of any
of the shares of stock covered by such restriction or limitation unless the same
be in conformity with the terms and conditions of such restriction or
limitation, provided that notice of the existence of such restriction or
limitation be noted conspicuously on the face or back of each certificate
representing shares subject to the terms and conditions of such restriction or
limitation.
10. Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under ss.
291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
ss. 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class or creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all of the creditors or class of creditors, and/or
on all the stockholders or class of stockholders, of the Corporation, as the
case may be, and also on the Corporation.
11. The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the General Corporation Law
of Delaware, as the same exists or may hereafter be amended. No amendment or
repeal of this paragraph shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any
act or omission on the part of such director occurring prior to such amendment
or repeal.
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12. The private property, whether real or personal, of directors and
officers of the Corporation shall not be subject to the payment of corporate
debts to any extent whatsoever.
13. The Corporation shall indemnify its directors, officers,
employees and agents to the fullest extent permitted by the General Corporation
Law of Delaware, as the same exists or may hereafter be amended.
14. The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
