<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
PETROFINA
---------------
(NAME OF ISSUER)
Ordinary Voting Shares
------------------------------
(TITLE OF CLASS OF SECURITIES)
716485206
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(CUSIP NUMBER)
Alain-Marc Irissou
General Counsel
TOTAL
Tour TOTAL
24, cours Michelet
La Defense 10
92800 Puteaux, France
(011-33-1) 41-35-40-00
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(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
With a copy to:
Jere R. Thomson, Esq.
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
(212) 326-3939
March 31, 1999
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(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 8 Pages
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CUSIP NO. 716485206 Page 2 of 8 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Total
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP a [ ]
b [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or (e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
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7 SOLE VOTING POWER
9,614,190
NUMBERS OF SHARES --------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING PERSON --------------------------------------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
9,614,190
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10 SHARED DISPOSITIVE POWER
-0-
- -------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,614,190
- -------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.0%
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14 TYPE OF REPORTING PERSON*
OO (societe anonyme)
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CUSIP NO. 716485206 Page 3 of 8 Pages
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ITEM 1. SECURITY AND ISSUER.
The securities to which this statement relates are the ordinary voting
shares, no par value ("PetroFina Shares"), of PetroFina, a Belgian societe
anonyme ("PetroFina"). PetroFina's principal offices are located at 52, rue de
l'Industrie, B-1040 Brussels, Belgium.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed by Total, a French societe anonyme ("Total").
Total is a major international integrated oil and gas company. The principal
offices of Total are located at Tour Total, 24, cours Michelet, La Defense 10,
92800 Puteaux, France.
Schedule I hereto, which is incorporated herein by this reference, sets
forth the name, the business address, the present principal occupation or
employment (and the name, principal business, and address of any corporation or
other organization in which such employment is conducted), and the citizenship
of the directors and executive officers of Total.
Neither Total nor, to its knowledge, any of the persons identified in
Schedule I hereto has, during the last five years, been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree, or final order enjoining future violations of, or prohibiting or
mandating activities subject to, Federal or State securities laws or finding any
violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
See Item 4 below.
ITEM 4. PURPOSE OF TRANSACTION.
On March 31, 1999, pursuant to a Contribution Agreement, dated December
1, 1998, among Total and the Contributors described below (the "Contributors")
(the "Contribution Agreement"), 9,614,190 PetroFina Shares were acquired by
Total from the Contributors in exchange for an aggregate of 43,263,855 shares of
Total, nominal value 50 French francs per share ("Total Shares"). The
Contributors are Electrafina, Investor (substituted for Fibelpar), Tractebel,
Electrabel, and AG 1824, Compagnie Belge d'Assurances Generales. Each of the
Contributors is a societe anonyme incorporated under the laws of Belgium. The
Contribution Agreement is incorporated herein by reference to Exhibit 2 to
Total's Annual Report on Form 20-F for the year ended December 31, 1998.
Total intends to commence an exchange offer to acquire (a) all of the
outstanding PetroFina Shares not already owned by Total at an exchange ratio of
9 Total Shares for each 2 PetroFina Shares, (b) all outstanding American
depositary shares of PetroFina ("PetroFina ADSs") at an exchange ratio of 9
American depository shares of Total (each representing one half of 1 Total
Share) for each 10 PetroFina ADSs (each representing one-tenth of a PetroFina
Share) and (c) all outstanding warrants with respect to PetroFina Shares issued
pursuant to the Warrant Agreement between PetroFina and Citibank, N.A. dated
August 5, 1998 ("PetroFina Warrants") at an exchange ratio of 81 warrants of
Total for each 100 PetroFina Warrants. Each Total Shares newly issued for the
purpose of this exchange offer will be delivered together with a certificate
called VVPR-Strip. (This certificate entitles certain Belgian taxpayers to a
reduction from 25% to 15% in the withholding tax rate applicable to all future
dividends paid by Total.)
On March 23, 1999, Henrique Bandeira Vieira resigned as member of the
PetroFina Board of Directors and was replaced, as of March 31, 1999 by Jean-Paul
Vettier, Total President of Refining and Marketing, who has been designated as
Managing Director of PetroFina with responsibility for downstream operations.
The current Board of Directors of PetroFina will propose to the next PetroFina
shareholders' meeting to be held on May 17, 1999, the immediate reconstitution
of PetroFina Board, after which a majority of the members of the PetroFina Board
will be representatives of Total.
In order to reflect the combination of Total and PetroFina, Total has
proposed that at its next extraordinary shareholders' meeting, to be held on May
11, 1999, its shareholders approve the change of Total's corporate name to Total
Fina S.A. ("Total
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CUSIP NO. 716485206 Page 4 of 8 Pages
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Fina"). Total intends that, during the next 2 years, the new group Total Fina
will dispose financial participations and non-core assets resulting in Euros 1.0
billion to 1.5 billion of proceeds. Total will implement an overall development
strategy to take advantage of the resources of PetroFina and its group,
including the continuity of the Belgian industrial facilities at Antwerp and
Feluy. In this regard, Total plans to work with PetroFina's management to
combine the operations of their refining and distribution businesses in order to
leverage the strengths of both entities in Europe. In particular, the refining
divisions of Total in Europe will be further reviewed to identify improvements
in productivity and synergies between the refining and petrochemicals activities
of Total.
Although Total does not intend to modify the dividend policy put in
place by PetroFina, the payment of any dividends will be subject to Total's
financial strategy.
To the extent permitted by the Deposit Agreement and Warrant Agreement
relating to the PetroFina ADSs and Warrants, if Total acquires sufficient
PetroFina ADSs and Warrants to permit such actions, Total intends to delist the
PetroFina ADSs and Warrants on the New York Stock Exchange, and to terminate the
registration of the PetroFina ADSs and Warrants pursuant to Section 12(g)(4) of
the Securities Exchange Act of 1934, as amended.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Total directly and beneficially owns 9,614,190 PetroFina
Shares, which constituted 41.0% all of the issued and
outstanding PetroFina Shares, as of March 31, 1999.
(b) Total has the power to vote and dispose of such 9,614,190
PetroFina Shares, subject to the restriction described in Item
6 below.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See Item 4 above. In addition, Total has agreed not to sell any
PetroFina Shares acquired from the Contributors until January 14, 2001.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
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Exhibit No. Description
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1 Contribution Agreement, dated as of December 1, 1998, among Total and the Contributors
(incorporated by reference to Exhibit 2 to Total's annual report on Form 20-F for the year ended
December 31, 1998)
2 General Memorandum of Understanding, dated as of December 1, 1998 among Total and the
Contributors (including English translation).
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CUSIP NO. 716485206 Page 5 of 8 Pages
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SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: April 9, 1999
Total
/s/ CHARLES PARIS DE BOLLARDIERE
--------------------------------
Charles Paris de Bollardiere
Treasurer
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EXHIBIT INDEX
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Exhibit No. Description
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1 Contribution Agreement, dated as of December 1, 1998, among Total and the
Contributors (incorporated by reference to Exhibit 2 to Total's annual
report on Form 20-F for the year ended December 31, 1998)
2 General Memorandum of Understanding, dated as of December 1, 1998 among
Total and the Contributors (including English translation).
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<PAGE> 7
SCHEDULE I
The following are the directors and executive officers of Total as of
April 6, 1999 and their principal occupations or employment. The business
address of all such persons for purposes of this Schedule 13D is Tour Total, 24
cours Michelet, La Defense 10, 92800 Puteaux, France. Each of such directors and
executive officers is a citizen of France except for Lord Alexander of Weedon,
who is a citizen of the United Kingdom, Baron Albert Frere and Thierry de
Rudder, who are citizens of Belgium and Paul Desmarais Sr., who is a citizen of
Canada.
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NAME PRINCIPAL OCCUPATION
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DIRECTORS
Thiery Desmarest Chairman and Chief Executive Officer of Total
Francois-Xavier Ortoli Honorary Chairman of Total
Jerome Monod Chairman of the Supervisory Board of Suez Lyonnaise des Eaux
Michel Francois-Poncet Chairman of the Supervisory Board of Paribas
Serge Tchuruk Chairman and Chief Executive Officer of Alcatel
Jean Syrota Chairman and Chief Executive Officer of Compagnie Generale des
Matieres Nucleaires (COGEMA)
Antoine Jeancourt-Galignani Chairman of Assurances Generales de France
Lord Alexander of Weedon, Q.C. Chairman and Chief Executive Officer of Natwest Group
Professor Bertrand Jacquillat Co-founder and Chairman and Chief Executive Officer of Associes
en Finance
Daniel Bouton Chairman and Chief Executive Officer of Societe Generale
Bruno Ribeyron-Montmartin Secretary of Total Outre-Mer
Didier Houssin Representing the French State
Director of Hydrocarbon Department
Ministry of Economy, Finance and Industry
Junior Minister's Office of Industry
Baron Albert Frere Chairman and Managing Director of Bruxelles Lambert S.A.
Thierry de Rudder Managing Director of Bruxelles Lambert S.A. and Electrafina
Honorable Paul Desmarais Chief Executive Officer of Power Corporation of Canada
EXECUTIVE OFFICERS
Thierry Desmarest.................... Chairman and Chief Executive Officer of Total
Alain Madec.......................... Executive Vice President of Total, and President of Strategy and
Finance
Jean-Paul Vettier.................... Executive Vice President of Total, and President of the Refining
and Marketing Division
Robert Castaigne..................... Executive Vice President of Total, and Chief Financial Officer
Daniel Valot......................... Executive Vice President of Total, and President of the Exploration
and Production Division
Jean-Pierre Seeuws................... Executive Vice President of Total, and President of the Chemicals
Division
Pierre-Rene Bauquis.................. Vice President; Special Advisor to the Chairman
Michele Benezit...................... Vice President; Senior Vice President Overseas Refining and
Marketing
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NAME PRINCIPAL OCCUPATION
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Claude Brice......................... Vice President; Senior Vice President Exploration and Production
Africa and Mediterranean Basin
Jean-Claude Company.................. Vice President; Senior Vice President Refining Europe
Ian Howat............................ Vice President Strategy and Corporate Planning, Secretary of the
Executive Committee
Christophe de Margerie............... Vice President; President Middle East Division
Pierre Proust........................ Vice President; Special Advisor to the Chairman
Jean-Jacques Guilbaud................ Vice President; Senior Vice President Human Resources and
Corporate Communications
Hugues Woestelandt................... Vice President and Executive Vice President Chemicals Division
Charles Paris de Bollardiere......... Treasurer
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EXHIBIT 2
GENERAL MEMORANDUM OF
UNDERSTANDING
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BETWEEN THE UNDERSIGNED:
1. ELECTRAFINA, a corporation under Belgian law with stated capital of BEF
13,692,135,813 and registered office in B-1000 BRUSSELS, 24, avenue
Marnix, registered in the Commercial Register of Brussels under No.
3,902, represented by Mr. Thierry de Rudder and Mr. Didier Bellens,
duly authorized for the purpose of these presents, and any other
company of its group to which PETROFINA shares may be transferred in
the meantime and for which it acts as a guarantor (hereinafter referred
to as "ELECTRAFINA"),
2. FIBELPAR, a corporation under Belgian law with stated capital of BEF
22,968,750,000 and registered office in B-6280 LOVERVAL, 12, rue de la
Blanche Borne, registered in the Commercial Register of Charleroi under
No. 139,774, represented by Mr. Gilles Samyn, duly authorized for the
purpose of these presents, and any other companies among its group to
which PETROFINA shares may be transferred in the meantime and for which
it acts as a guarantor (hereinafter referred to as "FIBELPAR"),
3. TRACTEBEL, a corporation under Belgian law with stated capital of BEF
30,204,546,074 and registered office in B-1000 BRUSSELS, 1, Place du
Trone, registered in the Commercial Register of Brussels under No.
38,296, represented by Mr. Philippe Bodson and Mr. Jacques Laurent,
duly authorized for the purpose of these presents, and any other
companies among its group to which PETROFINA shares may be transferred
in the meantime and for which it acts as a guarantor (hereinafter
referred to as "TRACTEBEL"),
4. ELECTRABEL, a corporation under Belgian law with stated capital of BEF
82,970,232,342 and registered office in B-1000 BRUSSELS, 8, Boulevard
du Regent, registered in the Commercial Register of Brussels under No.
267,922, represented by Mr. Jean-Pierre Hansen and Mr. Emmanuel van
Innis, duly authorized for the purpose of these presents, and any other
companies among its group to which PETROFINA shares may be transferred
in the meantime and for which it acts as a guarantor (hereinafter
referred to as "ELECTRABEL"),
5. AG 1824, COMPAGNIE BELGE D'ASSURANCES GENERALES, a corporation under
Belgian law with stated capital of BEF 2,708,177,981 and registered
office in B-1000 BRUSSELS, 53, Boulevard Emile Jacqmain, registered in
the Commercial Register of Brussels under No. 345,622, represented by
Mr. Maurice Lippens and Mr. Herman Verwilst, duly authorized for the
purpose of these presents, and any other companies among its group to
which PETROFINA shares may be transferred in the meantime and for which
it acts as a guarantor (hereinafter referred to as "AG 1824"),
(hereinafter collectively referred to as the "COMPANIES"),
PARTY OF THE FIRST PART
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AND
TOTAL, a corporation under French law with stated capital of FFR 12,216,658,800
and registered office in France, in PUTEAUX (Hauts-de-Seine), 24, Cours
Michelet, registered in the Commercial and Company Register under No.
542,051,180, represented by Mr. Thierry DESMAREST acting in his capacity of
Chairman of the Board of Directors and duly authorized for the purpose of these
presents (hereinafter referred to as "TOTAL"),
PARTY OF THE SECOND PART
(the Companies and TOTAL are hereinafter collectively
referred to as the "PARTIES"),
WHEREAS:
1. The Companies are shareholders of PETROFINA, a corporation under
Belgian law with stated capital of BEF 43,605,279,966 divided into
23,459,772 shares without par value, to which could be added 511,255
shares that might be created by the exercise of various warrants issued
by PETROFINA, admitted to the official listing of the Brussels Stock
Exchange and other financial stock exchanges, with registered office in
B-1040 BRUSSELS, 52, rue de l'Industrie, registered in the Commercial
Register of Brussels under No. 227,597 (hereinafter referred to as
"PETROFINA").
2. The number of PETROFINA shares held by the Companies on the date of
these presents is as follows:
5,304,018 shares held by ELECTRAFINA;
1,518,218 shares held by FIBELPAR;
1,275,772 shares held by TRACTEBEL;
1,241,000 shares held by ELECTRABEL;
275,182 shares held by AG 1824;
i.e., a total of 9,614,190 PETROFINA shares (hereinafter collectively
referred to as the "SHARES").
3. The Parties have sought a mutual rapprochement in order to implement
industrial synergies between TOTAL and PETROFINA. For this purpose,
TOTAL will acquire the Shares held by the Companies. This acquisition
will take the form of contributions in kind, subject to French law, and
will be compensated by new shares of TOTAL ("NEW TOTAL SHARES") under
the terms and conditions described below, whereby the Companies will
become shareholders of TOTAL as a result of these contributions.
- 3 -
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As soon as the contributions, which are the subject of the
Contribution Agreement, have been made, TOTAL will file a notice of a
public exchange offer ("OPE") for the entirety of the shares and, if
necessary, PETROFINA securities equivalent thereto within the meaning
of Article 1, ss. 3 of the Royal Decree of November 8, 1989, which are
not owned by the Companies, under the same terms as those offered to
the Companies.
These operations fall within the scope of an industrial combination
between TOTAL and PETROFINA and the purpose of this Memorandum is to
clarify this scope.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
TITLE I - IMPLEMENTATION OF COMBINATION TRANSACTIONS
ARTICLE 1. SIGNATURE OF AGREEMENT BETWEEN THE PARTIES FOR CONTRIBUTIONS
IN KIND
1.1 To implement the first stage of the industrial combination described
above, the parties are signing today the Contribution Agreement
attached as Exhibit 1 (hereinafter referred to as "CONTRIBUTION
AGREEMENT").
1.2 The Board of Directors of TOTAL called a Combined General Meeting of
its shareholders November 30, 1998, notably to approve the contribution
transaction by the Companies and the corresponding increase in TOTAL's
capital under the terms of the notice of meeting, which is attached to
these presents as Exhibit 2. The Board of Directors furthermore decided
the launching of the OPE and has delegated the necessary powers to its
Chairman to implement it.
1.3 The report by the Board of Directors of TOTAL to the General Meeting of
its shareholders, in which it recommends, in particular, the approval
described in Paragraph 1.2 above, is attached to these presents as
Exhibit 3.
1.4 The parties agree that in the event that the General Meeting of the
shareholders of TOTAL should fail to approve by February 17, 1999, the
contributions and the corresponding compensation set forth in the
Contribution Agreement, TOTAL shall pay to the Companies a
non-revisable sum of US$ 100,000,000, exclusive of any other sum
whatsoever, in consideration of the immobilization of the shares, which
are the subject of the Contribution Agreement. This sum is to be
distributed among them in proportion to the PETROFINA shares to be
contributed by each. This clause shall not be construed as a right to a
penalty for any of the parties.
ARTICLE 2. LAUNCHING OF AN OPE BY TOTAL FOR THE PETROFINA SHARES
2.1 As soon as the contributions, which are the subject of the Contribution
Agreement, have been made, TOTAL will file the notice and documents
with the Belgian Banking and Finance Commission, as specified in
Articles 4 and 5 of the Royal Decree of November 8, 1989, regarding
take-over bids and changes in the control of companies, required to
launch an OPE for the entirety of the shares forming the capital of
PETROFINA that are not owned by the Companies and, if required,
securities equivalent thereto within the meaning of
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Article 1, ss. 3 of the Royal Decree of November 8, 1989, that are not
owned by the Companies.
2.2 Within the context of the OPE, two (2) common PETROFINA shares
contributed to the OPE are planned to be exchanged for nine (9) new
common TOTAL shares with dividend rights as of January 1, 1998 (i.e.,
providing the right to all dividends paid for fiscal year 1998). TOTAL
shall have the right to the dividends paid for fiscal year 1998 by
PETROFINA, except for a unique interim dividend for fiscal year 1998 of
BEF 460 per share of PETROFINA to be decided by the Board of Directors
for the benefit of its shareholders, or any other equivalent formula
for the shareholders' benefit.
The terms of the OPE to be launched shall be the same as those for the
contributions made in accordance with the Contribution Agreement.
2.3 The opening of this OPE will be subject to the approval by the Belgian
Banking and Finance Commission and the competent European Authorities
under (EC) Council Regulation No. 4064/89 regarding control of
concentration operations between enterprises and by the competent
American authorities under the American Hart-Scott-Rodino Antitrust
Improvements Act.
ARTICLE 3. FAILURE OF CONDITIONS PRECEDENT AND CONSULTATION AMONG THE PARTIES
The approvals by the competent European authorities under (EC) Council
Regulation No. 4064/89 regarding control of concentration operations between
enterprises and by the competent American authorities under the
Hart-Scott-Rodino Antitrust Improvements Act must be obtained within a period of
3 months from the date when said authorities are notified of the operation.
TOTAL shall complete such notifications by December 18, 1998 at the latest. If
at the end of these 3 months, the concentration has not been authorized, the
commitments by the Companies shall remain in effect for an additional period of
one month. At the end of this one-month period, the commitments by the Companies
shall become null and void due to failure of the conditions precedent unless,
upon a good faith consultation, the Companies and TOTAL reach an agreement no
later than fifteen days prior to the expiration of this one-month period
regarding the deadline for obtaining the approval by said authorities. Assuming
such an agreement, the Companies' commitments will remain in full effect.
TITLE II - ORGANIZATION OF SYNERGIES BETWEEN TOTAL AND PETROFINA
ARTICLE 4. GENERAL POLICY OF THE NEW GROUP ESTABLISHED BY TOTAL AND PETROFINA
As soon as the contribution in kind has been completed and TOTAL has obtained
control of PETROFINA within the meaning of Belgian Accounting Law, the following
actions shall be taken:
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4.1 TOTAL shall implement a global development strategy that will profit
from the resources of PETROFINA and its group. To this end, TOTAL is
planning jointly to manage with PETROFINA their refining-distribution
assets in order to optimize the advantages of the two entities in
Europe. In particular, TOTAL shall ensure the continuation of the large
Belgian industrial sites of Anvers and Feluy and pursue the necessary
investments.
4.2 To better reflect the alliance between the two entities, TOTAL shall
propose to the first General Meeting of its shareholders following the
closing of the OPE to change the name "TOTAL" to a new name: "TOTAL
FINA".
4.3 PETROFINA shall remain an entirely separate legal structure with its
own corporate bodies and general management. The registered office of
PETROFINA shall remain in Brussels. Furthermore, the seats of the
operational general management of TOTAL FINA refining-distribution and
petrochemicals shall be located in Brussels. Mr. Francois CORNELIS
shall be appointed Member and Vice-Chairman of the Executive Committee
of TOTAL FINA.
4.4 The Board of Directors of PETROFINA shall be composed of 7 members
appointed by TOTAL and 5 members appointed by the ELECTRAFINA Group.The
Board of Directors of PETROFINA shall be chaired by Baron A. FRERE. Two
Managing Directors shall be initially appointed: Mr. Francois CORNELIS
and Mr. Jean-Paul VETTIER.
4.5 With respect to labor issues, the planned combination will be the
subject of major consultation and will depend on the development
prospects of the new group. In particular, a joint policy of stock
ownership and stock options will be implemented for the employees of
TOTAL FINA following a study of the different systems currently in
place at the TOTAL and PETROFINA companies.
ARTICLE 5. TRANSFER
TOTAL shall not transfer the PETROFINA shares contributed by the Companies in
any form whatsoever for a period of two years from the date when such
contributions are made.
TITLE III - MISCELLANEOUS PROVISIONS
ARTICLE 6. CONFIDENTIALITY
Subject to the information to be provided in connection with the OPE
prospectus or Document E approved by the Commission of Stock Exchange Operations
(Commission des Operations de Bourse), the Parties shall keep the existence of
this Memorandum of Understanding as well as its terms and conditions strictly
confidential. Consequently, the Parties shall not disclose any information
pertaining thereto to anyone whatsoever without the prior written agreement by
the Parties, except as required by law or by the applicable regulations.
However, the Parties shall provide this document and any other documents showing
the value of the securities, which are the subject of the offer, to CBF if CBF
requires them to do so.
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ARTICLE 7. TERM
This Memorandum of Understanding, with respect to its Articles 4 and 6, is
entered into for a period of five (5) years from the date of signature of these
presents and may be renewed by tacit agreement for successive periods of one (1)
year, respectively.
Any party that does not intend to continue to be bound at the end of a period
in progress as set forth in this Article shall notify the other Parties of its
decision by registered mail with return receipt requested no later than three
(3) months before expiration of the period in progress.
ARTICLE 8. NOTIFICATION
Any notification or communication that may become necessary in the context of
this Memorandum of Understanding shall be sent by registered mail with return
receipt requested and shall become effective on the date of receipt, or on the
date of mailing if the text is previously sent by fax or telex. Said
notifications shall be mailed to the following addresses, unless changes are
made, which shall be notified as indicated above:
For ELECTRAFINA:
24, avenue Marnix
B 1000 BRUSSELS
Attention: Mr. Thierry de Rudder
For FIBELPAR:
12, rue de la Blanche Borne
B 6280 LOVERVAL
Attention: Mr. Gilles Samyn
For TRACTEBEL:
1, Place du Trone
B 1000 BRUSSELS
Attention: Mr. Emmanuel van Innis
For ELECTRABEL:
8, boulevard du Regent
B 1000 BRUSSELS
Attention: Mr. Willy Bosmans
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For AG 1824:
53 Bd. Emile Jacqmain
B 1000 BRUSSELS
Attention: Mr. Jean-Marie Moreels
For TOTAL:
Tour TOTAL
24 Cours Michelet
La Defense 10
92 069 PARIS La Defense Cedex
Attention: Mr. Robert Castaigne
ARTICLE 9. APPLICABLE LAW
The present Memorandum of Understanding shall be subject to French law.
ARTICLE 10. DISPUTES
Any disputes that may arise between the Parties concerning the validity,
interpretation, or execution of this Memorandum of Understanding shall be
definitively settled pursuant to the Rules of Conciliation and Arbitration of
the International Chamber of Commerce by three arbiters appointed in accordance
with these Rules. The place of arbitration shall be in Paris and the language of
the proceedings shall be French. The court of arbitration will not be able to
rule on an amicable composition
ARTICLE 11. FINAL PROVISIONS
In the event that there are discrepancies between the provisions of this
Memorandum of Understanding and any of the provisions contained in its
Attachments, the provisions of the Memorandum of Understanding shall prevail.
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<PAGE> 9
Done in Brussels
December 1, 1998
in 7 originals
ELECTRAFINA FIBELPAR
Represented by Represented by
[signatures] [signature]
Mr. Thierry de Rudder Mr. Gilles Samyn
Mr. Didier Bellens
TRACTEBEL ELECTRABEL
Represented by Represented by
[signatures] [signatures]
Mr. Philippe Bodson Mr. Jean-Pierre Hansen
Mr. Jacques Laurent Mr. Emmanuel van Innis
AG1824 TOTAL
Represented by Represented by
[signatures] [signature]
Mr. Maurice Lippens Mr. Thierry Desmarest
Mr. Herman Verwilst
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