Initial Public Offering (IPO): Registration Statement of a Foreign Private Issuer — Form F-1 Filing Table of Contents
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1: F-1 Registration Statement of a Foreign Private Issuer HTML 1.34M
2: EX-1.1 Underwriting Agreement HTML 8K
3: EX-1.2 Underwriting Agreement HTML 13K
4: EX-4.1 Instrument Defining the Rights of Security Holders HTML 376K
5: EX-4.2 Instrument Defining the Rights of Security Holders HTML 141K
6: EX-5.1 Opinion re: Legality HTML 13K
7: EX-10.1 Material Contract HTML 286K
16: EX-10.10 Material Contract HTML 33K
17: EX-10.11 Material Contract HTML 41K
18: EX-10.12 Material Contract HTML 32K
19: EX-10.13 Material Contract HTML 22K
20: EX-10.14 Material Contract HTML 19K
21: EX-10.15 Material Contract HTML 10K
22: EX-10.16 Material Contract HTML 10K
8: EX-10.2 Material Contract HTML 314K
9: EX-10.3 Material Contract HTML 209K
10: EX-10.4 Material Contract HTML 43K
11: EX-10.5 Material Contract HTML 20K
12: EX-10.6 Material Contract HTML 83K
13: EX-10.7 Material Contract HTML 108K
14: EX-10.8 Material Contract HTML 78K
15: EX-10.9 Material Contract HTML 162K
23: EX-23.1 Consent of Experts or Counsel HTML 11K
24: EX-23.3 Consent of Experts or Counsel HTML 10K
CONTRACT
OF PURCHASE AND SALE AND OTHER SETTLEMENTS
By
this present private contract, the parts, on one side:
·
UNIVEN
PETROQUIMICA LTDA., with its headquarters located at Rua Mediterraneo,
290, conjunto 01, Terreo, Jardim do Mar, Sao Bernardo do Campo, SP.,
CEP
09750-420, registered with CNPJ under number 67.276.923/0001-41,
which has
its articles filed at JUCESP under number 35.210.588.453, session
of July19, 2002 and last amendments filed under number 216.262/06-9, on
September6, 2006, represented in this contract by its main partner VIBRAPAR
PARTICIPACOES LTDA., shareholding company with limited responsibility,
located in the City of Sao Paulo, Alameda Vicente Pinzon, 173, 13th
floor,
Vila Olimpia, CEP 04547-130, registered at JUCESP under number
35216695618, in session of Dec. 28, 2000, registered with CNPJ under
number 04.211.528/0001-60, represented in this contract by its
administrators, Alexandre Argoud Malavazzi, Brazilian, businessman,
married under partial common property, born in Sao Paulo, Identification
number 19.936.431-X-SSP/SP, CPF no. 132.367.878-64, address and residence
at Rua Marcus Pereira, 37, apt. 81, Morumbi, Sao Paulo, SP, and Joao
Deguirmendjlan, Brazilian, businessman, married under total common
property, born in Sao Paulo, Identification no. RG 5.301.096 SSP/SP,
CPF
no. 529.470.258-49, address and residence at Rua Realengo, 133, apt.
211,
Pinheiros, Sao Paulo, SP, being that UNIVEN has 84% of the Capital
Stock
of ‘Destilaria Simoes’ (described
below).
·
Mr.
Werner Jose Brancaglion Rottgering, Brazilian, married under partial
common property, businessman, Identification number 19.164.818-8
SSP/SP,
CPF/MF no. 148.076.058-79, address and residence at Rua Leonardo
Mota, no.
66, apt. 51, Butanta, Sao Paulo, SP, from here on named ‘WERNER’;
holder of 4% of stock shares of the “Destilaria de Alcool Simoes
Ltda.”
·
Mrs.
Eunice Granato Quecine, Brazilian, widow, tradeswoman, Identification
number 5.432.844 SSP/SP, CPF/MF no. 139.451.688-64, address and residence
at Rua Voluntarios de Piracicaba, no. 737, apt. 71, Centro, Piracicaba,
SP, from here on named ‘EUNICE’;
holder of 4% of stock shares of the “Destilaria de Alcool Simoes
Ltda.”
·
Mrs.
Luciana Simões de Almeida Kfouri, Brazilian, married under partial common
property, dental surgeon, Identification number RG n° 17.081.635 SSP/SP,
CPF/MF n° 099.325.948-06, address and residence at Rua Manoel de Azevedo,
n° 95, Recanto dos Pinheiros, Matão-SP, from here on named “LUCIANA”;
holder of 0,8% of stock shares of the “Destilaria de Álcool Simões
Ltda.”
·
Mr.
Jairo Simões de Almeida, Brazilian, married under partial common property,
businessman, Identification no. RG 10.704.980 SSP/SP, CPF/MF no.
026.981.488-45, address and residence at Rua Professor Joaquim Teixeira,
no. 355, Cecap, Tatuí-SP, from here on named “JAIRO”;
holder of 3,6% of stock shares of the “Destilaria
Simões.”
·
Mr.
Fábio Simões de Almeida, Brazilian, judicially separated, businessman,
Identification no. RG 11.737.287 SSP/SP, CPF/MF no. 026.981.498-17,
address and residence at Rua Juvenal de Campos, no. 908, Tatuí-SP,
Butantã, São Paulo-SP, from here on named “FÁBIO”;
holder of 3,6% of the stock share of the “Destilaria
Simões.”
(UNIVEN,
WERNER, EUNICE, LUCIANA, JAIRO and FÁBIO from here on named together, as
SHAREHOLDERS, and, separately, COMPANY SHAREHOLDER):
·
DESTILARIA
DE ÁLCOOL SIMÕES LTDA.,
limited partnership, with its headquarters at Bairro Congonhal, s/n, Tatuí-SP,
CEP: 18270-000, with its articles of constitution filed at the ‘Junta Comercial
do Estado de São Paulo’ under no. NIRE 35.208.107.761, registered in CNPJ under
no. 59.243.733/0001-08, from here on named “SIMÕES”,
this
company, in this Contract, intermediates as consentor of the present transaction
for all its SHAREHOLDER partners qualified above, in the case of option on
the
acquisition only of their assets, as agreed below;
·
VIBRAPAR
PARTICIPAÇÕES LTDA.,
qualified above, which at this time comes as guarantor, as agreed below;
·
Mrs. CECÍLIA
SANSIGOLO SIMÕES DE ALMEIDA,
Brazilian, widow, housewife, Identification no. RG 2.615.251 SSP/PI, Tatuí, São
Paulo, CPF no. 110.344.728-95, address and residence at Rua Treze de Fevereiro,
no. 577, Tatuí, São Paulo; (Together with LUCIANA, JAIRO AND FÁBIO are owners of
two glebes of land which added have an area of 11 ‘alqueires’ (Brazilian land
measurement, 24,200m2(paulista) = 1 alqueire), where the “Destilaria Simões” is
located, from here on named OWNER
OF THE LANDS).
(OWNER
OF
THE LANDS, THE SHAREHOLDERS named together, SELLERS and separately SELLER)
and,
on
the other side,
·
COMANCHE
DO BRASIL PARTICIPAÇÕES LTDA.,
limited partnership company, with its headquarters in the Capital
of the
State of São Paulo, at Alameda Campinas, 463, 7th floor, registered in
CNPJ under no. 07.751.535/0001-43, in this contract represented by
its
Director, Mr. Ivo Tolesano Júnior, Brazilian, married, business
administrator, Identification no. RG 5.233.932 SSP/SP, CPF/MF no.
579.584.918-91, address and residence in the Capital of São Paulo, with
office at Rua Funchal, 375, 8th floor, from here on named
PURCHASER;
(SELLERS
AND PURCHASER named together, as Parts and, individualy as Part).
PRELIMINARY
CONSIDERATIONS
CONSIDERING
THAT:
I.
OWNER
OF THE LANDS, is owner of the rural property, (described in the plan), where
the
industrial park of SIMÕES is installed, properly registered in a larger area,
registration no. 23799 of the registration of Properties of Tatuí, where the
industrial park of SIMÕES is located, according to description in Enclosure “A”
(“Industrial Area”);
II. SIMÕES
is
the lessee or partner of agricultural property, which is properly planted with
sugar-cane (the "Agricultural Leases”), as described in Enclosure “B” of this
document;
III. SIMÕES
is
owner of certain assets, equipment, sugar-cane and other goods related to the
agricultural activity, of grinding, transportation, distillation and production
of alcohol and its by-products, including, among others, those described and
characterized in Enclosure “C” of this document, that, together with the
Agricultural Leases, represent the totality of the assets of SIMOES up to the
present date, and it can become owner of other assets related to the activity
of
production of alcohol between the present date and the Closing date (the
"Assets" - also understood as the contracts of Agricultural Leases).
IV. UNIVEN,
WERNER, EUNICE, LUCIANA, JAIRO AND FÁBIO are title holders and legitimate
proprietors of the totality of the representative shares of 100% (a hundred
percent) of the capital stock of SIMÕES (the "SHARES"), in the constant
proportion in its partnership deed mentioned above, these shares being free
from
any encumbrance, obligations, duties, responsibilities or debts with third
parties;
V.
SIMÕES
is obligated to pay debts and obligations described in Enclosure “D” of this
contract, in which the totality of the debts and obligations of Simões raised up
to present date and those due until January 31, 2007 (the "Debts and Existent
Obligations”).
VI.
Observed the conditions established in this contract, the PURCHASER promises
to
acquire concomitantly, (i) from the SHAREHOLDERS the Shares or the Assets,
and
the SHAREHOLDERS promise to alienate to the same; and (ii) the Area of Industry
of the Owner of the Lands, and the Owner promises to sell the Area of Industry
to the PURCHASER;
THE
PARTS
DECIDE to make this Private Instrument of Purchase and Sale and Other
Settlements (“Contract”) which will regulate the acquisition for the PURCHASER
(i) of the Area of Industry together with the Owner of Lands; (ii) of the Shares
or of the Assets together with the SHAREHOLDERS.
SECTION
ONE
TOTAL
AGREEMENT
1.1.
Through this Contract, the Parts agree that the obligations established in
any
documents or previous understandings, be it in writing, or verbally, that the
Parts or any part related have negotiated in relation to the Areas of Industry,
to the Assets and the Shares were properly executed on this date, and the terms
and conditions foreseen substitute all and any previous agreement by the Parts
or by the parts here listed.
SECTION
TWO
CLOSING
2.1.
On
the date that all the Closing Conditions are executed, as defined below in
Section Four, (the "Closing Date”), in agreement with the terms and conditions
of the present Contract, simultaneously:
(i)
the
PURCHASER will acquire from the OWNER OF THE LANDS the Area of Industry;
(ii)
the
PURCHASER will acquire from SIMÕES the rights and obligations related to the
Agricultural Leases;
(iii)
the
PURCHASER will acquire from the SHAREHOLDERS:
(A) In
the
case that the condition from Clause 2.2. (i) below has been satisfied, the
Shares;
or
(B)
In
the case that the condition foreseen in Clause 2.2 (i) has not been satisfied,
but the conditions foreseen in the Clauses 2.2. (ii) and 2.3. have been
executed, the Assets.
2.2.
For
the purpose of determination of the modalities of acquisition of the PURCHASER
foreseen above in Clause 2.1, the Parties agree to the following conditions
to
be satisfied:
(I)
For
the PURCHASER to realize the acquisition of the Shares, it is indispensable
the
accomplishment of an accounting audit in SIMÕES in agreement with the accounting
principals generally accepted in Brazil, satisfactory to the PURCHASER and
its
expenses. In case the Parts and the Audit company contracted by the PURCHASER
agree that a conclusion of the referred audit is viable, the Parts will decide
to proceed in the transaction in this modality.
For
the
due ends of the accounting audit the SHAREHOLDERS promise to cooperate and
to
undertake the best efforts, making all the information and necessary documents
available for the referred accounting audit in the smallest possible period
of
time, or still, at the discretion of the SELLERS, the presentation of financial
statements audited by company of independent audit registered with (CVM)
Commission of Real Estate Values, indicated by the SELLERS, and paid and
accepted by the PURCHASER, obeying the international norms of accounting audit,
financial statements which should be revised by another audit company to be
indicated and contracted at the PURCHASER’S discretion, including in relation to
the methodology of the audit undertaken by the auditors indicated by the SELLERS
(hereon named "Accounting
Revision”).
(ii)
In
the case that the Parts agree, after the end of the Audits, SHAREHOLDERS should
proceed to all the necessary acts to make effective and valid a reduction of
the
capital stock of SIMÕES, by means of the payment and distribution 'in natura' to
SHAREHOLDERS of the totality of the Assets.
2.3.
On
the Closing Date, SELLERS and PURCHASERS should accomplish the transference
of
the Area of Industry, of the Agricultural Leases and of the Assets or of the
Shares, according to the case, by means of the practice of all the necessary
acts for the effectivation of the operation here contemplated, as, for example,
the officiating of the public deed of purchase and property sale and the
instrument of alteration of the Contract of SIMÕES (“Closing
Documents”),
being
observed the determination in item 3.2 (i) below, being certain that the
transfer of the totality of the Area of Industry and of the Agricultural Leases
will be conditioned to the transfer of the Assets or of the Shares, and
vice-versa, these transfers should happen simultaneously on the Closing Date.
2.4.
Starting from the formalization of the instruments above mentioned in item
2.3,
the rights, obligations and respective credits foreseen in the present Contract
are individualized and personalized according to each document made between
the
parts, continuing in effect the obligations of the present Contract in total
effect, as for its parts in the terms of this Contract, in specific form to
each
object of its respective instruments.
SECTION
THREE
PRICE
OF PURCHASE AND PAYMENT OF THE PRICE OF PURCHASE
3.1.
On
the Closing Date, and as long as the conditions of Closing foreseen below in
Section Four have been totally satisfied, at the reasonable discretion of the
PURCHASER, the PURCHASER, or who was designated by the PURCHASER, will pay
to
the SELLERS, in the quality of price for the Area of Industry, for the
Agricultural Leases and for the Shares or Assets, the value defined below in
the
clauses (together with, the "Price
of Acquisition"),
in
the way and in the conditions established in the following clauses.
3.2.
The
PURCHASER will pay the SELLERS the total value of R$63.000.000,00 (sixty-three
million Reais), deduced from the Debts and Existent Obligations, updated until
the closing, being that any other debts, contingencies, liabilities, obligations
or fiscal disputes, working and welfare disputes, that can add expenses or
affect the ownership right and domain of the area of Industry, of the
Agricultural Leases, of the Shares or of the Assets, and of SIMÕES, as well as
its effective and valid alienation - together, "Debts
of the Destilaria Simões"
(except
the debts in Enclosure D, starting from February, 2007, that starting from
then
will be assumed by the PURCHASER, in the eventuality of the materialization
of
the business. Any of the values in Enclosure D and paid by the SELLERS before
the Closing Date, with expiration date after February 2007, will be reimbursed
on the Closing Date, being that the balance after eventual discounts will be
paid to the SELLERS in one payment) after being signed and after delivery of
Final Documents which will formalize the transactions.
3.2.1.
The Debts of the Destilaria Simões whose payments are not the responsibility of
the same (SIMÕES) and that should be paid on occasion of the Closing, will be
paid directly by the PURCHASER to the respective creditor, by bill and order
of
the SELLER responsible for the payment, being that the value paid be deduced
automatically from the Price of Acquisition as foreseen above.
3.2.2.
The PURCHASER will be aware that, in the eventual closing of the business,
he
should take out from the payment, only the part belonging to UNIVEN, the amount
of R$15.000.000,00 (Fifteen million Reais) that will be directly paid to BRASKEN
S/A, according to contract of warranty given to the same by such SELLER, after
referred payment, not to remain any debt obligation, dispute or warranty on
any
of the Assets, of the Shares or of the Area of Industry, according to the case.
3.3.
The
PURCHASER will also be aware that, in the eventual closing of the business,
he
will also owe, besides what is mentioned in item 3.2.2., to take from the
payment, only the part belonging to UNIVEN, the amount of R$ 16.990.848,00
(Sixteen Million, Nine hundred and Ninety Thousand, Eight hundred and Forty
Eight reais) that will be directly paid to Petrovia, according to NP 01/01
of
the purchase and sale contract of the stock shares of 10/10/2006, of which
the
expiration date will be March 10, 2007, after which payment, there will not
remain any obligation, debt, dispute or warranty on any of the Assets, of the
Shares or of the Area of Industry, according to the case.
3.4.
In
case the property that composes the Area of Industry, as described in Enclosure
A, or the Agricultural Leases, as described in Enclosure B, present any
difference between the area ‘ad corpus’ and the area of the property superior to
5%, the PURCHASER and the SELLERS should negotiate in good faith the respective
reduction or proportional increase of the Price of Acquisition, in order to
compensate the PURCHASER for the loss of the Area of Industry or of the
sugar-cane plantation in the Agricultural Leases.
3.5.
Each
portion of the acquisition Price will be paid to SHAREHOLDERS and to the OWNER
OF THE LANDS in agreement with the percentage defined in Enclosure 3.5., after
the respective deductions foreseen in this third clause.
3.7.
The
Parts agree that all the relative costs for the formalization of the Closing
Documents, especially the rates and emoluments paid to realize the registration
of property and domain transfer of the Area of Industry, among which stand
out
the transmission tax of properties - ‘inter vivos’ and emoluments of the
purchase and sale of property deed, will be supported by the PURCHASER.
3.8.
The
SELLERS and the PURCHASER respectively recognize and accept, observing what
is
allowed in law, that they will adopt and use the values effectively allocated
to
each asset or class of assets, in all the declarations or statements of federal
and state taxes or of other applicable instances, abstaining from adopting
any
position voluntarily inconsistent in that sense, when proceeding for the
preparation of such declarations or tax statements, in restitution forms or,
still, in any action or process that may come to be instituted with relationship
to the mentioned declarations or tax statements. Nevertheless any disposition
contrary to those contained in the present contract, the commitment foreseen
above will subsist to the Closing Date, in a restricted way the legal
responsibility and for the period of the legal prescription of the respective
obligations.
SECTION
FOUR
SUSPENSIVE
AND/OR RESOLUTIVECONDITIONS
4.1.
The
Parts in this act agree that, as a precedent condition to the consummation
of
the operation here contemplated and to the effective alienation of the Area
of
Industry and of the Shares or Assets, according to the case, the terms of this
Contract, by means of the payment of the Price of Acquisition, the following
conditions (the "Closing
Conditions"),
should be completely satisfactory, should be in force and should be satisfactory
to the PURCHASER, as follows:
a)
Declarations
and Warranties:
The
declarations and warranties rendered by the SELLERS, as established below in
Section Five (the "Declarations
and Warranties")
should
be correct and complete and should continue to be valid on the Closing Date,
the
PURCHASER having received the documents and enough information evidencing,
for
the PURCHASER’S satisfaction, that the referred Declarations and Warranties are
complete and valid.
b)
Audits:
The
legal, financial and accounting audits, including, but without limitation,
the
Accounting Revision, should be enough to confirm the Declarations and
Warranties, to define the current and historical situation of the assets and
liabilities of SIMÕES, and to allow that the consolidation of the transaction is
approved in the PURCHASER’S Patrimonial Statement, in agreement with the
accounting principals generally accepted in the United States of America
("US
GAAP"),
without any exception;
c)
Technical
Report:
The
confirmation, by specialized professionals to be hired by the PURCHASER, that
the Assets of SIMÕES are capable of operating in an efficient, reliable,
continuous and in a consistent way with the economic expectations, to
industrialize, at least, 550.000 tons of sugar-cane per crop, or superior value,
having been administered and operated in its normal course of business by
SIMÕES; the distillation equipment is not included in this report. Its nominal
capacity recognized by the parts is of 120.000 liters/day.
d)
License
and Registrations:
The
confirmation, by specialized professional to be hired by the PURCHASER, that
the
PURCHASER possesses all the licenses of installation and/or operation licenses,
State Registration and all the other ones requested by the legislation and
regulations in force;
e)
Confirmation
of the Agricultural Areas:
The
confirmation, by specialized professional to be hired by the PURCHASER, that
the
Lessee of the Lands is detainer of lease contracts in the total volume of at
least 710 alqueires(‘paulista’, which is equivalent to 24,200m2 each), on which
are already planted sugar-cane, and will still be planted approximately 260
‘alqueires’ in the first quarter of 2007, generating in this way a crop
expectation for the crop of 2007/2008 of 160.000 tons of its own sugar cane,
contracts which are made according to the normal practices on the market; and
where the is evidence of additional areas for leasing and expansion of the
plantation of SIMÕES;
f)
Supply
of Raw Material by Third Parties:
That
evidence exists of the availability of sugar-cane from third parties in an
approximate annual volume of 240 thousand tons, which can be acquired according
to the habitual practices of market;
g)
Contribution
Clearance Certificates:
That
the following certificates be issued, on behalf of SIMÕES: (a) “Certidao
Conjunta Negativa de Debitos relativos a Tributos Federais e a Divida Ativa
da
Uniao”
(Clearance Group Certificate of Debts on Federal Taxes and Outstanding Debt
of
the Union); (b) “Certidao
negativa de debitos emitida pelo Instituto Nacional de Seguridade Nacional
-
INSS”
(Clearance certificate of debts issued by the National Institute of Social
Security - INSS), regarding the payment of social contributions, and (c)
“Certidao
Negativa de debitos emitida pelo fundo de Garantia por Tempo de Servico -
FGTS”
(Clearance certificate of debts issued by the Fund of Guarantee for Time of
Service - FGTS), which is necessary, so that the Shares are transferred to
the
PURCHASER or so the reduction of capital of SIMÕES can be realized with the
distribution ‘in natura’ of the assets to its partners.
h)
Reduction
of the stock capital of SIMÕES:
Effectivation of the reduction of capital of SIMÕES and distribution ‘in natura’
of the Assets to the partners, as foreseen in clause 2.2 (ii) of the present
contract, being this condition only
applicable if the acquisition takes place in the modality foreseen in clause
2.1
(iii) (B).
i)
Documents:
The
practice of acts and the officiating of all additional documents that come
to be
necessary for the consummation of the operation contemplated here.
SECTION
FIVE
DECLARATIONS
AND WARRANTIES
5.1.
The
determination in clause 7.1.1 below, being observed, the SELLERS render each
one, individual, solidary and unlimited, the following Declarations and
Warranties, which should be true and correct on the Closing Date:
a)
Observance
to the Laws.
The
operations and activities of the SELLERS related to SIMÕES, to the Assets and to
the Area of Industry, should not violate any determination or applicable law
of
any governmental organization, nor should the SELLERS receive any warning or
notification that such violations were or could become imputed by them. That
they are not in course or, except for better judgment of the SELLERS, there
are
no investigations or analyses by any Governmental Organization, involving the
SELLERS or the Assets and the Area of Industry, nor the SELLERS have received
any warning or notification concerning the intention of governmental
organizations in proceeding in that sense.
b)
Corporate
Constitution and Capital Stock of SIMÕES.
SIMÕES
is a limited partnership constituted and legally existent and in regular
situation, having full power and corporate authorization to conduct its business
as it is now doing and is authorized to possess the properties and the goods
that it now possesses. The capital stock of SIMÕES is, on this date,
R$20.227.200,00 (Twenty Million Two hundred and twenty-seven Thousand and Two
hundred reais) and it is divided and represented by Shares, which were
integrated properly by the SHAREHOLDERS. All the Shares are free and
disentangled of any commission, pawn, obligation and warranty and rights of
any
nature. The SHAREHOLDERS didn't check, nor do options exist, preference rights,
pawn or other relative similar rights to the Shares. There is no lawsuit,
administrative process or other fact or circumstance that could impede or
interfere in the transfer of the Shares in the terms of the present Contract.
c)
Constitution,
Power and Authorization.
The
SELLERS have full power to officiate this Contract, to execute its obligations
now assumed and to consummate the operations contemplated in the present
Contract, having been taken the necessary measures for the authorization and
the
consummation of the operation object of this Contract, not being necessary,
therefore, that any additional measures be taken so that the signature and
the
formalization of this Contract can take place.
d)
Titleholder
of the Area of Industry.
OWNER
OF THE LANDS is the titleholder, legitimate owner of the two glebes of land
leased to the “Destilaria Simões” and where the assets that compose the Area of
Industry are, as described in Enclosure A and registration copy in larger area
n° 23.799, of the “Cartorio de Registro de Imoveis de Tatui,” and that the same
are free and disencumbered of any commission, pawn, obligation and warranty
and
rights of any nature, and that the OWNER OF THE LANDS didn't officiate any
contract or agreement, except the one of leasing for Simões, that has as its
object the Area of Industry or the pawn constitution or other relative similar
rights to the same ones.
e)
Titleholder
of Assets.
SIMÕES
or the SHAREHOLDERS, as the case may be, is (are) titleholder(s), legal owner
and owns the totality of Assets, as described in Enclosure C and that the same
are free and disencumbered of any commission, pawn, obligation and warranty
and
right of any nature. SIMÕES and/or the SHAREHOLDERS did not officiate any
contract or agreement that has as its object the Assets or the pawn constitution
or other relative similar rights to the same ones.
f)
Capacity
of the Assets.
The
necessary Assets for the operation of the business of the SELLERS, are
physically located inside the property that compose the Area of Industry, and
they are capable of operating according to description of the Capacity of the
Assets, having been administered and operated in its normal course of business
by the employees of SIMÕES, and all the production accomplished by the Assets
and in the Area of Industry after the present date, as well as the stock on
the
Closing Date is not the object of sale contract or of similar contract, nor
it
is subject to any commitment, obligation or other commission, the responsibility
for execution belonging exclusively to the SELLERS, with the exception of what
is in clause 3.2.
g)
Obligations
of the SELLERS.
The
SELLERS, together or individually: (i) have no obligation or responsibility,
incurred, contingent or of any other nature, including civil, commercial,
fiscal, environmental, employment or welfare that can affect the respective
ownership rights on the Shares, the Assets and the Area of Industry and they
didn't assume any obligation or responsibility involving the Shares, the Assets
and the Area of Industry; (ii) they are not parts, nor are they subject to,
any
litigation, judicial or administrative process, in any instance that can affect
the Shares, the Assets and the Area of Industry; and (iii) they are not
guarantors, guarantees or any other form of guarantors of any obligations nor
are parts of any contract for force of which they put under an obligation to
honor any obligations that in some form can commit the Shares, the Assets and
the Area of Industry, except for the warranty rendered to the company BRASKEN
S/A, which should be free and disentangled of everybody and any obligation
according to clause 3.2.2.
h)
Normal
Operation.
SIMÕES
and the Assets will be administered and operated between the present date and
the Closing Date in its respective normal courses of business.
i)
Non
distribution of assets or resources.
Between
the present date and the Closing Date, SIMÕES didn't distribute or commit
distribution, and SHAREHOLDERS didn't practice any act nor oriented SIMÕES to
distribute or assumed any commitment to distribute, to give or encumber, direct
or indirectly, any of its assets, resources, including available funds to any
title of SIMÕES, to the SHAREHOLDERS themselves, its related parts or third
parties, except if in another way contemplated in this Contract.
j)
Recruiting
with related parts.
The
SELLERS didn't officiate nor committed to officiate any agreement, contract
or
arrangement involving the Shares and/or the Assets and/or the Area of Industry
and/or the business of the SELLERS with any of its related parts.
k)
Permissions,
Licenses and Authorizations.
SIMÕES
and the OWNER OF THE LANDS assist, on this date, to all the approaches, legal
and technical demands, and necessary requirements for the obtaining of all
the
permissions, licenses and authorizations demanded by the legislation and
regulation in force, including the definitive licenses of operation, for the
regular operation of the business of SIMÕES, and on the Closing Date the same
should have in its respective names all the permissions, licenses and
authorizations demanded by the legislation and regulation in vigor, including
the definitive licenses of operation, for the regular operation of the business
of SIMÕES, valid and in force. SIMÕES and OWNER OF THE LANDS meet in strict
observance to all the regulations, permits, governmental decrees, normative
instructions, laws, norms and pertinent demands of protection to the environment
instituted by the competent organs and municipal, state and federal departments.
l)
Total
Divulgation.
All the
documents, contracts, instruments, certificates, warnings, consents, sworn
in
declarations, letters, declarations, enclosures (including, among others, the
Enclosures that constitute integral part of the present contract) and other
documents given by the SELLERS, or in their names, to the PURCHASER or the
person indicated by him about the present Contract or the operations in him
contemplated are faithful, complete and authentic. No Document supplied by
the
SELLERS, or in its name, to the PURCHASER or the person indicated by him in
this
contract or with relationship to the operations contains untrue declarations,
or
omits important facts whose divulgation in this contract is compulsory or
necessary so that the declarations may not become false or be mistaken, in
the
context they are in.
m)
Inclusion
and Sufficiency of the Documents.
The
transmission instruments and conference to be officiated by the SELLERS and
given to the PURCHASER, in the Closing will be valid and executable in agreement
with its respective terms, being enough to give, to transfer and to confer
to
the PURCHASER, on the occasion of the Closing, the Area of Industry and the
Shares and the Assets, according to the case, that will include, all the related
or necessary goods for the conduction of the business of SIMÕES, in the way
these are being conducted now.
5.2.
The
PURCHASER renders the following declarations and warranties, which should be
true and correct on the Closing Date.
a)
Constitution,
Power and Authorization.
The
PURCHASER has full power to officiate this Contract, to execute its obligations
now assumed and to consummate the operations contemplated in the present
Contract, having been taken the whole necessary measures for the authorization
and the consummation of the operation object of this Contract, not being
necessary, therefore, that any additional measures be taken so that the
signatures and formalization of this Contract be made.
SECTION
SIX
AUDITS
6.1.
Starting from the present date and until the Closing Date, the SELLERS will
provide total and unrestricted access to the PURCHASER, to his lawyers and
other
advisers, to the Assets and Area of Industry and will give to the same, in
the
largest possible brevity, so that the PURCHASER can make, in an esteemed period
of 30 days, the legal, accounting and financial audits, including, but without
limitation, the Accounting Revision, besides the technical evaluation of the
Assets, of the Area of Industry, of the Agricultural Leases and of SIMÕES, with
the purpose of verifying the precision of the Declarations and Warranties
presented.
SECTION
SEVEN
SOLIDARY
RESPONSIBILITY AND WARRANTIES
7.1.
The
SELLERS will answer solidarily before the PURCHASER for everybody and any values
to which they were obligated, such as taxes, fiscal contributions or welfare
contributions and fines, that might not have been paid by the SELLERS on the
dated demanded by law, that were not furnished by SIMÕES and related to
generating facts happened previously to the Closing Date, as well as any
obligation, contingent or not, of civil, commercial nature, employment,
environmental, welfare or fiscal of the SELLERS or that have been by these
assumed for legal and related facts occurred or acts practiced previously to
the
Closing Date.
7.1.1.
Only the SELLERS, CECÍLIA, LUCIANA, JAIRO and FÁBIO will be solidary to the
OWNER OF THE LANDS, who indeed are its proprietors, who also answer for the
eviction of rights, exempting from this solidarity the other SELLERS that are
only shareholders of the “Destilaria Simões.”
7.2.
the
guarantor VIBRAPAR, in this act is the solidary guarantor and main payer of
the
obligations assumed by the SELLERS, rendering the following warranties in favor
of the PURCHASER:
(a)
Pawn
over the totality of the credit rights originating from the leasing contract
officiated with PETROBRÁS S/A and that has for contiguous object area of
110.000,00 m2, to the area where one finds the Refinery of Capuava installed,
whose initial leasing is of R$ 70.000,00 monthly, in terms and conditions
substantially identical to the Enclosure 7.2 (a), enclosure that will be agreed
upon between the Parts in the period of 7 (seven) days counting from the present
dates, by means of the valid celebration of the referred pawn and gives the
PURCHASER on the Closing Date; and
(b)
bail
in the terms of the art. 818 and ss of the Brazilian Civil Code, with
renouncement to the order benefit, of the art. 827;
7.3.
The
SELLERS recognize and agree that any cost, expense, penalty, damage, loss,
damage or responsibility of any nature or species (including interest,
indexation, lawyer fees and judicial and administrative costs) incurred by
the
PURCHASER due to the SELLERS (i) having at the Closing Date, rendered any
Declaration and Warranty that are not true, complete or correct; or, (ii) not
complied with obligation due of the Sections Ten and Eleven of the present
Contract; Such values, in case they are raised after the payment of the Price
of
Acquisition and not liquidated opportunely by the SELLERS, will be (i)
automatically deduced and paid starting from the warranty rendered in 7.2 (a)
above; (ii) collected by means of execution of the warranty rendered in 7.2
(b)
above; or (iii) by means of the collection and execution of the SELLERS.
7.4.
It
is allowed for the SELLERS the possibility of discussing in judgment or out
of
it, eventual debts raised latter and with which the same don't agree, as long
as
it is justified.
7.5.
In
case the Closing Date doesn't happen because of an audit, the evaluation and
the
legal revision foreseen above, verified that the declarations and warranties
are
not correct, or are not complete nor satisfactory, according to the PURCHASERS’
exclusive and reasonable approach, or that the debts or contingencies related
to
the Area of Industry or the Assets overcome those disclosed in the terms of
this
Contract or of its enclosures, the PURCHASER and the SELLERS should negotiate,
in good faith, adjustments under the Price of Acquisition, in order to
compensate the PURCHASER for any negative difference or inconsistency of the
Declarations and Warranties.
7.6.
The
obligations contemplated in this Section Seven and the Declarations and
Warranties will subsist until the end of this Contract, being valid until the
end of the period of prescription and decline of each one of the respective
obligations or in up to 5 (five) counted years of the Closing Date, whatever
happens last.
SECTION
EIGHT
INTERIM
ADMINISTRATION
8.1.
From
the present date until the Closing Date or the end of this Contract, the SELLERS
guarantee that the administration of SIMÕES and of the leased areas will be
accomplished in a responsible way and maintaining the normal course of the
activities of the company, executing all the normal obligations of the company,
including to honor the due dates of debts and taxes.
8.2.
Between the present date and the Closing Date or the end of this Contract,
SIMÕES will not distribute nor promise to distribute, and the SHAREHOLDERS will
not act or guide SIMÕES to distribute or will assume any commitment to
distribute, to give or encumber, direct or indirectly, any of its assets,
resources, including available funds of SIMÕES for any purpose, to the
SHAREHOLDERS, its related parts or third parties, except by means of
Extraordinary Disposition of Assets.
8.3.
The
ownership on the Assets, the Area of Industry negotiated or even the effective
cession of the Shares will be given on the date of the effective closing of
the
business here agreed upon.
SECTION
NINE
STATED
PERIOD OF TIME AND PERIOD OF NOTICE
9.1.
This
Contract will be valid on this date, and it will continue to be valid and in
effect until the date when any of the following events first occurs (the
"Period
of Duration"):
(i)
the accomplishment of the hereforseen operation on the closing date or (ii)
the
non accomplishment in a satisfactory way, at the discretion of the PURCHASER,
of
the Closing Conditions inside the unpostponable period of 60 (sixty) days
counting from the present date, by means of simple notification to the addresses
declared in clause 12.5.
9.2.
The
SELLER PARTS compromise to give their best efforts for all the Closing
Conditions to be executed in the shortest practical time.
SECTION
TEN
EXCLUSIVENESS,
NON-COMPETITION
10.1.
The
SELLER PARTS, during the period of Validity, agree in negotiating with
exclusiveness with the PURCHASER on the sale of the Area of Industry and of
the
Assets (in all of it or part of it), and they promise not to officiate any
contract related to the Area of Industry and to the Assets, not to issue any
new
shares of SIMÕES, not to transfer any share that they own of SIMÕES and, not to
allow the constitution of any commissions on the shares and on the business
of
the SELLERS, except those contemplated in this Contract. On the Date of the
Closing, and in consideration to the Price of Acquisition, each SELLER promises,
without there being the need of any additional documentation, to refrain, direct
or indirectly, of competing with SIMÕES or with any of its parts related under
any form by the five year period counting from the Closing Date, in the markets
explored by SIMÕES. Except businesses located away from the SIMOES facilities in
a radius of 300km minimum.
SECTION
ELEVEN
CONFIDENCIALITY
11.1.
Each Part should maintain secret on all the obtained information of the other
part in relation to the present Contract that are not of public knowledge,
that
have not been known independently or developed, that has not been obtained
from
third parties or that are not of public knowledge by virtue of delinquency
of
the Part that has received it (jointly the “Confidential
Information”).
The
“Confidential Information” (that can be oral, in writing or magnetic, being
designated or not as "confidential", and that includes contact information
and
information referring to structure, negotiation methods or financial
organization) can only be used by the receiving Part in the effectivation of
the
transactions contemplated in this Contract and for no other purpose. In the
hypothesis of ending this Contract, all the documents (including the copies)
obtained by virtue of this Contract by a Part should be returned to the other
pertinent Part, however, the confidentiality obligations and limitation to
the
use will stay in force for the two year period after the date of the ending
of
the Contract. Each Part promises not to disclose and to maintain in secret
the
terms and conditions of this Contract, being included, but if not limiting
to
the compensation to be paid below, except if the divulgation of this information
becomes obligatory for the consummation of the purchase and sale contemplated
in
this Contract, demanded by any government authority, applicable law or
regulation of the stock exchange law to which the Part is submitted, or if
he/she obtains the consent of all the other Parts. In the case of noncompliance
of the obligations of this clause by one of the Parts, the Delinquent Part
should reimburse the other for losses and damages.
SECTION
TWELVE
FINAL
DISPOSITIONS
12.1.
The
Parts, in this act, expressly, agree with everybody on the terms and conditions
of the present Contract, not opposing the same, for any reason and at any time,
putting under obligation, to accomplish all the acts and necessary formalities
for the full and perfect formalization of the sale of the Shares, of the Assets
and of the Area of Industry now contracted, including before all the competent
organs, signing contractual alterations and any other documents that are made
necessary for so much.
12.2.
The
present Contract is firmed in an irrevocable way, forcing the parts and its
successors to accept the same.
12.3.
The
present Contract cannot have additions or be changed without the approval of
all
the parts, in writing, and, except for the cases expressly foreseen in this
Contract, none of the Parts can give or transfer any of its rights and
obligations originating from this Contract, without the consent of the other
parts.
12.4.
The
invalidation, inefficacy or inexecutability of any of the dispositions contained
in this Contract, won't invalidate nor will it turn inoperative or inexecutable
any of the other dispositions of the present Contract, which will continue
in
force. The Parts should negotiate the necessary measures to correct such
dispositions of eventual existent addictions.
12.4.1.
Eventual unmotivated waiver, from part to part will give opportunity to the
part
that gives cause to the non accomplishment of the business a pre-fixed fine
for
losses and damages in the value of R$ 10.000.000,00 (ten million Reais). If
the
giving up is motivated then nothing will be owed by the parts, mainly the
expenses with professionals that will proceed the audits mentioned.
12.5.
All
and any communication or notifications referring to the present Contract should
be made in writing and sent to the Parts by letter registered with return
notice, or by telefax for the addresses below discriminated:
SELLERS:
The
communications should be sent to the addresses below:
VIBRAPAR
PARTICIPAÇÕES LTDA.
JOÃO
DEGUIRMENDJIAN E/OU ALEXANDRE ARGOUD MALAVAZZI
Boulevard
Vicente Pinzon 173, 13° floor
Villa
Olímpia - CEP 04547-130 - Sao Paulo-SP
PURCHASER:
The
communications should be sent to the addresses below:
IVO
TOLESANO
Rua
Funchal 375, group 81
Villa
Olímpia - CEP 04551-060 - Sao Paulo-SP
Fax
(11)
3044-0342
c.c.
MHMK
- Sociedade de Advogados
Attn:
Byung Soo Hong
Av.
Brigadeiro Faria Lima, 1461, 12° andar
Fax
(11)
3094-7820
12.6.
The
present Contract is governed by the laws of the Federative Republic of Brazil
and any work or conflict coming of this Summary should be solved exclusively
before the Forum of the District of the City of São Paulo, Brazil.
Therefore,
being just and contracted, the parts sign the present contract in 08 (eight)
copies, of the same text, in the presence of the two witnesses below.
FOR
THE “DESTILARIA DE ALCOOL SIMOES LTDA.” AND AS SHAREHOLDERS, INDIVIDUALLY
___________________________
____________________________
UNIVEN
PETROQUIMICA LTDA.
UNIVEN
PETROQUIMICA LTDA.
JOÃO
DEGUIRMENDJIAN
ALEXANDRE
ARGOUD MALAVAZZI
/s/
Werner
José Brancaglion Rottgering
/s/Eunice
Granato Quecine
WERNER
JOSÉ BRANCAGLION ROTTGERING
EUNICE
GRANATO QUECINE
/s/Luciana
Simões De Almeida Kfour
/s/
Jairo Simões De Almeida
LUCIANA
SIMÕES DE ALMEIDA KFOUR
JAIRO
SIMÕES DE ALMEIDA
/s/
Fábio Simões De Almeida
FÁBIO
SIMÕES DE ALMEIDA
(this
sheet of signatures is part of this Private Instrument of Purchase and Sale
and
Other Settlements officiated on this date and has as object the alienation
of
the shares or assets of the Destilaria Simões Ltda and of the Area of Industry)
