Exhibit 10.2
Shares Sale and Purchase Agreement
Shell Petroleum N.V.
and
Oxiteno Nordeste S.A. Industria e Comercio
and
Companhia Ultragaz S.A.
relating to
the sale and purchase of the whole of the issued share capital of Shell Gas
(LPG) Brasil S.A.
This Shares Sale and Purchase Agreement (the "Agreement") is entered into on,
and is effective as of, this 08 of August, 2003, by and between
Shell Petroleum N. V., a corporation organized and existing under the laws of
The Netherlands, with its principal offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Laan, The
Hague, The Netherlands (hereinafter the "Seller"),
AND
Oxiteno Nordeste S.A. Industria e Comercio, a corporation organized and existing
under the laws of the Federative Republic of Brazil, with its principal offices
at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇/ 7(degree) andar, Sao Paulo, State of
Sao Paulo (registered in the taxpayers' registry under No. 14.109.664/0002-89)
(hereinafter the "Purchaser"),
AND
Companhia Ultragaz S.A., a corporation organized and existing under the laws of
the Federative Republic of Brazil, with its principal offices at ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇/ 9(degree) andar, Sao Paulo, State of Sao Paulo
(registered in the taxpayers' registry under No. 61.602.199/0001-12)
(hereinafter the "Ultra"), having as its objective the sale by the Seller and
the purchase by the Purchaser of the totality of the Shares of the Company (as
defined below).
Seller and Purchaser are also hereinafter referred to individually as a "Party"
and jointly as the "Parties".
WHEREAS:
(A) The Seller is the legal and beneficial owner of the Shares (as defined
below) and is entitled to sell all such Shares to the Purchaser on the terms and
conditions set out in this Agreement;
(B) The Seller agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from Seller, the totality of the Shares for the Purchase Price (as
defined below), and subject to the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. Clause One - Interpretation
1.1 In this Agreement and the Schedules to it:
"Affiliate" means a company, partnership (including
but not limited to "sociedades
anonimas", "sociedades
simples" and "sociedades simples
limitadas" or "sociedades empresarias
limitadas") or other legal entity which
directly or indirectly controls, or is
controlled by, or which is controlled by
an entity which controls, a Party.
"Control" means the ownership directly
or indirectly of more than fifty (50)
percent of the voting rights in a
company (including, but not limited to
"sociedades anonimas", "sociedades
simples" and "sociedades simples
limitadas" or "sociedades empresarias
limitadas") or other legal entity. With
respect to the Seller, Affiliate shall
also mean its parent companies (the
"Parent Companies") N.V. Koninklijke
Nederlandsche Petroleum Maatschappij,
The "Shell" Transport and Trading
Company Plc, or either of them, and any
company (except Seller) directly or
indirectly controlled by such Parent
Companies or either of them;
"Audited Financial Statements" shall have the meaning attributed to it
on Clause 3.2(A)(v) below;
"Books and Records" means all Company's accounting books,
tax books, corporate books (including
but not limited to the share register
book, share transfer book, minutes of
the General Shareholder's meeting book,
shareholders' attendance book and
minutes of the executive committee's
meeting book) and any support
documentation used by the Company in
order to prepare such books;
"Business Day" means a day (other than a Saturday or a
Sunday) on which banks are open for
business in ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇
▇▇▇▇▇, ▇▇▇▇▇▇ and in The Hague, The
Netherlands;
"Business Information" means all information, know-how and
records (whether or not confidential and
in whatever form held) including
(without limitation) all:
A) formulas, designs, specifications,
drawings, data, manuals and
instructions;
B) customer lists, sales, marketing and
promotional information;
C) business plans and forecasts; and
D) technical or other expertise
proprietary to the Company;
"Closing Balance Sheet" means the balance sheet prepared by the
Company for the period ended on July
31,. 2003;
"Closing Date" means the date this Agreement has been
entered into by and between the Parties,
as indicated in the preamble above,
which will also be the date of
completion of the transactions to convey
ownership and title of the Shares to the
Purchaser against payment by the
Purchaser to Seller of the Purchase
Price;
"Company" means Shell Gas (LPG) Brasil S.A. basic
information concerning which is set out
in Schedule 3 (Basic information about
the Company);
"Completion" means the completion of the sale and the
purchase of the Shares and payment of
the Purchase Price to the account
designated by Seller, as set forth in
Clauses 2, 3, 4 and 5 hereto;
"Core Business" means a business activity exercised
directly or indirectly by a Person,
which represents more than 15%
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of the consolidated gross income of such
Person;
"Designated Bank" means the Brazilian bank designated by
the Seller to close the foreign exchange
transaction for remittance of the due
Purchase Price to the Seller's account
overseas;
"Disclosure Letter" means the letter dated August 8, 2003
written by the Seller to the Purchaser
for the purposes of Clause 9
(Purchaser's remedies and Sellers
limitations on liability) and its
attachments, a copy of which is attached
to this Agreement as Schedule 5. For all
the purposes of this Agreement, all
documents delivered with it, listed in
or referred to in any attachment of the
Disclosure Letter shall be considered as
a part of the Disclosure Letter;
"Encumbrance" means any and all liens, charges,
security interests, options, claims,
mortgages, pledges, or agreements,
obligations, understandings or
arrangements or other restrictions on
title or transfer of any nature
whatsoever;
"Environmental Laws" has the meaning given in paragraph 21 of
Schedule 1 (Warranties);
"Environmental Matters" has the meaning given in paragraph 21 of
Schedule 1 (Warranties);
"Environmental Permits" has the meaning given in paragraph 21 of
Schedule 1 (Warranties);
"Governmental Authority" means any administrative, judicial or
legislative body, agency, bureau,
commission, court, department or other
instrumentality of any federal, state or
municipal government, of Brazil;
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"Hazardous Material" has the meaning given in paragraph 21 of
Schedule 1 (Warranties);
"IPC-A" means Indice de Precos ao Consumidor
Amplo, calculated by Instituto
Brasileiro de Geografia e Estatistica;
"Indebtedness" means (i) all indebtedness for borrowed
money (including, without limitation,
indebtedness incurred with financial
institutions, the Seller or Affiliates
of the Seller), (ii) all indebtedness
related to the deferred purchase price
of property or services, (iii) any other
indebtedness that is evidenced by a
note, bond, debenture or similar
instrument, (iv) all obligations under
financing leases, and (v) all
liabilities secured by any lien on any
property;
"Intellectual Property" means patents, trade marks, rights in
designs, copyrights and database rights
(whether or not any of these is
registered and including applications
for registration of any of the
aforementioned);
"LPG" means liquefied petroleum gas;
"Material Adverse Effect" means an effect which is materially
adverse to (i) the consolidated
financial condition, businesses or
results of operations of a person as a
whole (or, if used with respect thereto,
of such group of persons taken as a
whole) or (ii) the ability of such
person (or group) to consummate the
transactions contemplated in this
Agreement;
"Nominees" means ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
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"Nominee Shares" means 16 common shares held by the
Nominees;
"Proceedings" means any proceeding, suit or action
arising out of or in connection with
this Agreement;
"Property" or "Properties" means any tangible and/or intangible,
movable and/or immovable property of the
Company, wherever same may be located;
"Purchase Price" means the price for which Seller agrees
to sell the Shares to the Purchaser, and
the Purchaser agrees to pay to Seller
for the Shares, in accordance with the
terms and conditions set forth in this
Agreement and as specifically agreed in
Clause 4.1 (Purchase Price) of this
Agreement;
"Reference Balance Sheet" means the balance sheet prepared by the
Company for the period ended on the
Reference Date, a copy of which is
attached hereto as Schedule 9;
"Reference Date" means April 30, 2003;
"Relevant Property" means the Property or Properties
referred to in the Disclosure Letter and
in Schedule 4 (Intellectual Property);
"Seller's Designated Account" means the Seller's bank account in New
York, United States of America, as
indicated in writing by Seller to
Purchaser at least 5 (five) Business
Days prior to the payment of any portion
of the Purchase Price, as per Clause
4.1.1. below;
"Service Agreement" means the Service Agreement between
Shell Brasil and the
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Company, an agreed form of which is
attached herewith as Schedule 11;
"Service Documents" means any documents delivered to any
Party for the service of process for any
suit or action related to this
Agreement;
"Shares" means 1.313.745 common shares held by
the Seller and the Nominee Shares, which
are fully subscribed and paid,
representing all the issued shares in
the capital of the Company;
"Share Purchase Documents" means this agreement, the Disclosure
Letter, the Trademark License Agreement,
the Service Agreement, and any other
documents referred in or attached to
this Agreement and the Disclosure
Letter;
"Shell Brasil" means Shell Brasil Ltda., a corporation
organized and existing under the laws of
the Federative Republic of Brazil, with
its principal office at ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ 5, rooms 101 through 701,
and bloco 6, rooms 101 through ▇▇▇, ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ of Rio de Janeiro, the
Federative Republic of Brazil, enrolled
with taxpayers register (CNPJ) under
number 33.453.598/0001-23;
"Shell Brasil Loan" has the meaning set forth in Clause
3.2(E) of this Agreement;
"Subsidiary" means at any relevant time any legal
entity in which the Company directly or
indirectly holds at least a majority of
the voting capital;
"Tax" or "Taxation" means any taxes, fees, levies, duties,
charges or similar assessments
(including interest, fines, penalties,
monetary adjustments and additions
8
imposed with respect thereto) imposed by
or payable to any governmental or other
taxing authority, whether federal,
state, municipal or otherwise,
including, without limitation, income,
withholding income tax, tax on
manufactured products, import tax, tax
on distribution or circulation of goods
and services, social security
contributions, social contributions, tax
on financial transactions, provisional
contribution on financial transactions.
tax on real property, tax on services
and other taxes of any kind or nature,
including the contributions related to
the Mandatory Fund for Unemployment
Benefit (Fundo de Garantia por Tempo de
Servico - FGTS);
"Trademark License Agreement" means the Trademark License Agreement
between Shell Brasil and the Company for
the purposes of Clause 6, an agreed form
of which is attached herewith as
Schedule 6;
"Transition Period" has the meaning set forth in Clause 6.2;
"Warranties" means the warranties set out in Schedule
1 (Warranties) given by the Seller, and
the warranties given by the Purchaser in
Clause 8, and "Warranty" shall be
construed accordingly;
"Waste" has the meaning given in paragraph 21 of
Schedule 1 (Warranties); and
"Working Hours" means 9.00 a.m. to 5.00 p.m. on a
Business Day, local time in Rio de
Janeiro, Brazil, and in The Hague, The
Netherlands.
9
1.2 In this Agreement, unless otherwise specified:
(A) references to Clauses, sub-Clauses, paragraphs, sub-paragraphs,
attachments and Schedules are to Clauses, sub-Clauses,
paragraphs, sub-paragraphs of, and attachments and Schedules to,
this Agreement;
(B) a reference to any statute or statutory provision shall be
construed as a reference to the same as it may have been, or may
from time to time be, amended, modified or re-enacted except to
the extent that any amendment or modification made after the
date of this Agreement would increase or alter the liability of
the Seller or of the Purchaser under this Agreement;
(C) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a
state or any joint venture, association or partnership (whether
or not having separate legal personality);
(D) use of any genders includes the other genders;
(E) except as provided for in Clause 16, references to writing shall
include any modes of reproducing words in a legible and
ncn-transitory form;
(F) headings to Clauses and Schedules are for convenience only and
do not affect the interpretation of this Agreement;
(G) the Schedules and any attachments form part of this Agreement
and shall have the same force and effect as if expressly set out
in the body of this Agreement, and any reference to this
Agreement shall include the Schedules and attachments.
2. Clause Two - Sale and Purchase
2.1 Subject to the terms and conditions set forth in this Agreement, the
Seller hereby irrevocably and unconditionally sells to the Purchaser and
cause the Nominees to sell to the Purchaser, and the Purchaser hereby
irrevocably and unconditionally purchases from the Seller, the Shares
for the Purchase Price with all rights and obligations attached or
accruing to them on the Closing Date.
2.2 The Purchaser shall be entitled to exercise all rights attached or
accruing to the Shares as from the Closing Date. Except as may be
expressly provided for in this Agreement, as of the Closing Date the
Purchaser
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becomes solely responsible for, and assumes, all obligations and
liabilities in any manner related to the Shares and the ownership
thereof.
3. Clause Three - Implementation of Shares Transfer/Procedures on the
Effective Date
3.1 Immediately before the Closing Date, the Seller has caused the Company
to:
(i) except for the Shell Brasil Loan, settle all invoices payable to
Affiliates of the Company;
(ii) terminate the agreement involving all the secondees, as per the
list attached to this Agreement as Schedule 7;
(iii) cancel the request for Registry n(degree) 824860489 concerning
the trademark "Shell Gas";
(iv) terminate all the powers of attorney granted by the Company
currently in force, except for those informed in writing by the
Purchaser to the Seller prior to the Closing Date; and
(v) make the provisions set forth in attachment III to the
Disclosure Letter, as agreed with the Purchaser.
3.2 On or prior to the Closing Date:
(A) The Seller has delivered to the Purchaser, who hereby declares
to have received and to be satisfied with each of the following:
(i) original letter of resignation by each of the Company's
statutory directors, with express relinquishment of any rights
which they may have under any contract of employment with the
Company or under any statutory provision including any right to
damages for wrongful dismissal, redundancy payment or
compensation for loss of office or unfair dismissal, it being
understood and agreed that all payments required to be made by
the Company to such directors (as well as any payment due
pursuant to any contract) shall be effected by the Company on or
before the Closing Date;
(ii) the Share Transfer Register Book of the Company (Livro de
Registro de Transferencia de Acoes Nominativas), duly signed by
an authorized representative of the Seller and by the Nominees,
reflecting the transfer of the Shares from the Seller and from
the Nominees and the Share Register Book of the Company (Livro
de
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Registro de Acoes Nominativas), reflecting the ownership of the
Shares by the Purchaser;
(iii) a copy of the power of attorney (or equivalent document) under
which the transfer of the Shares is executed on behalf of
Seller;
(iv) all Books and Records of the Company; and
(v) audited financial statements of the Company for the accounting
reference period ended on December 31, 2002, comprising a
balance sheet, profit and loss account, notes, auditors' and
directors' reports and a statement of the source and application
of funds (the "Audited Financial Statements") and the Reference
Balance Sheet.
(B) The Purchaser has delivered to the Seller, who hereby declares
to have received and to be satisfied with each of the following:
(i) a certified copy of the resolution of the directors of the
Purchaser which authorised the purchase of the Shares for the
consideration and upon the terms set out in this Agreement;
(ii) proof of payment of the Purchase Price in accordance with the
Seller's payment instructions.
(C) The Company (with the express consent of the Purchaser), the
Purchaser and the Seller, or the relevant Seller's Affiliate,
have each executed three counterparts of the Trademark License
Agreement, and have each delivered to the other one duly signed
counterpart of same.
(D) The Seller shall hold a General Meeting of Shareholders of the
Company in order to approve the change of its corporate name to
SPGAS Distribuidora de Gas S.A. and appoint the new directors
indicated by the Purchaser, among other matters.
(E) The Purchaser shall pay, as per Shell Brasil's written
instructions, on behalf of the Company, the outstanding amount
of principal and accrued interest due under the loan agreement
entered into between the Company and Shell Brasil on February
13, 1997 and any other debt owed to Shell Brasil, being the
total amount due equal to R$ 62.701.000,00 (sixty two million,
seven hundred and one thousand reais) as of the Closing Date
(the "Shell Brasil Loan").
(F) The Seller shall cause Shell Brasil to enter into a Service
Agreement with the Company, which shall govern the rendering of
services by Shell Brasil to the Company.
12
3.3 No later than 30 days after the Closing Date, the Seller shall:
(i) deliver to the Purchaser the instrument terminating the
agreements for the rendering of services to the Company listed
in the Schedule 8 to this Agreement duly signed by the
applicable Affiliate of the Seller; and
(ii) cancel all guaranties given by the Company to or on behalf of
any secondee, officer or director of the Company or any party
related to the Seller (including, without limitation, any
Affiliate or Subsidiary of the Seller),
provided, however, that the Seller shall reimburse and indemnify the
Purchaser, the Company and/or any of their Affiliates for any amount
paid or damage suffered by any of them in connection with any of the
agreements and/or the guaranties mentioned above. The amounts due by the
Seller under this Clause shall be adjusted by IPC-A from the date on
which the relevant payment is made or damage is incurred to the date on
which the Seller reimburse or indemnify the Purchaser, the Company or
any of their Affiliates.
4. Clause Four - Purchase Price
4.1 The total consideration for the sale of the Shares (the "Purchase
Price") shall be the payment by the Purchaser to the Seller of the
amount of R$ 107.865.000,00 (one hundred and seven million, eight
hundred and sixty five thousand reais) to be paid on the Closing Date to
the Seller in accordance with Clause 4.1.1.
4.1.1 Payment of the Purchase Price shall be made by means of the execution of
a foreign exchange agreement between the Purchaser and the Designated
Bank which shall include, without limitation, the following information:
(i) as purpose of the transaction, the acquisition of the Shares by the
Purchaser; (ii) as currency of the exchange transaction, the US Dollar;
(iii) as destination of the funds, the Seller's Designated Account; (iv)
as exchange rate, the exchange rate to be agreed between the Seller and
the Designated Bank, as informed in writing to the Purchaser by the
Seller and the Designated Bank before the Closing Date; and (v) any
other wire or other instructions specifically required in writing by the
Seller, in order to permit the remittance of any portion of the Purchase
Price to the Designated Account on the Closing Date, to the extent
permissible by applicable foreign exchange laws and regulations in force
from time to time.
4.2 With due regard to Clause 4.1. above, on the Closing Date, the Purchaser
shall cause the Company to proceed with the registration of the sale of
13
Shares to the Purchaser, and the appropriate amendments in the existing
foreign investment registration, with the Central Bank of Brazil,
through SISBACEN system, RDE-IED Mode (Eletronic Registration Statements
- Direct Foreign Investor), for which purpose Seller shall provide on
the day immediately prior to the Closing Date such RDE-IED number to the
Purchaser, so as to permit the closing of the foreign exchange contract
for the remittance of funds by the Purchaser to the Seller.
4.3 Each of the parties shall be exclusively liable for the payment of its
own Taxes, that may result from the sale, assignment and transfer of the
Shares as provided hereunder. Should the Purchaser be required by law to
deduct the withholding income tax in respect to the Purchase Price, the
Purchaser shall then make such deduction and pay the amount agreed with
the Seller on its behalf to the respective tax authority. The Purchaser
shall deliver to the Seller a certified copy of the tax documents
attesting the collection of such withholding tax within a 30-day period
following the Closing Date. Should a Party be held liable for a payment
due by the other party, the other party shall defend, hold harmless and
indemnify the other Party against which the payment is unduly assessed.
5. Clause Five - Completion
5.1 Completion of the sale and purchase of the Shares shall take place on
the Closing Date at the office of the Purchaser located at ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, 7(degree) andar, Sao Paulo, State of Sao
Paulo, the Federative Republic of Brazil (or in such other place or date
as may be agreed upon in writing by the parties hereto) and upon all
actions/procedures referred to in Clause Three above having been
taken/performed.
5.2 The Parties agree that all licences of Intellectual Property or know-how
granted by the Seller or an Affiliate of the Seller to the Company which
are current on the Closing Date shall terminate with effect from the
Closing Date, and that the Trademark License Agreement shall be entered
into by and between the Company and the Seller or the relevant Affiliate
of the Seller, the specific purpose of which is to allow the Purchaser
to take all necessary measures for the re-branding of all of Company's
and its customers sites within the term established in the Trademark
License Agreement. The Parties agree that should the Purchaser not
re-brand all of Company's and its customers' sites within the term of
duration of the Trademark License Agreement or fail to comply with any
other obligation set forth therein, Purchaser will be subject to the
penalties established therein, without prejudice to any other legal
remedies available to the Seller.
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6. Clause Six - Use of Trade Marks and Business Names by the
Purchaser/Company
6.1 The Purchaser agrees that all rights to visual identity, trademarks,
brand, trade, domain names, corporate or business logos of the Seller or
of any of the Seller's Affiliates are proprietary to, and shall remain
vested in, the Seller or the relevant Seller's Affiliates following the
Closing Date. Except as specifically and exclusively permitted under
Clauses 6.2, 6.3, 6.4 and 6.5 hereof, following the Closing Date the
Purchaser and its Affiliates shall refrain from, and shall cause the
Company to refrain from, using any name including the word "Shell", or
any name confusingly similar to the word "Shell" for any purpose. The
Purchaser further agrees to take all necessary measures to cause the
Company to comply with the provisions of this Clause 6 after the Closing
Date. Any breach by the Purchaser or the Company of any provision of
this clause 6 will result in the imposition of a daily penalty in the
amount of R$50.000,00 per day until such default is cured, without
prejudice to any other remedies available to the Seller or any of its
affiliates.
6.2 In relation to the trademarks, trade business names or logos of the
Seller or any of the Seller"s Affiliates, which appear on any cylinders,
bulk tanks, vehicles, plants, depots, points of sale, franchisees' sites
and any other asset, equipment or material which are used by the Company
and/or its sub-licensees on the Closing Date, the Purchaser has agreed
that Company enters into the Trademark License Agreement with Shell
Brasil, which is the licensee of and has the right to grant third
parties the right to use the relevant trade marks, according to which
the Company and its sub-licensees may continue to display such trade
marks, trade, business names, or logos of the Seller or any of the
Sellers Affiliates on any cylinders, bulk tanks or vehicles, plants,
depots, points of sale, franchisees' sites and any other asset,
equipment or material which are used by the Company and/or its
sub-licensees, as existing on the Closing Date and thereafter for
specific transition periods set forth in the Trademark License Agreement
("the Transition Periods"). During the term of validity of the Trademark
License Agreement and until no later than the last day of each
Transition Period, the Purchaser agrees that it shall remove, or shall
cause the Company or shall take all reasonable legal and/or commercial
measures to cause its sub-licensees to remove, in the manner set forth
in the Trademark License Agreement, from all such cylinders, bulk tanks,
vehicles, plants, depots, points of sale, franchisees' sites and any
other asset, equipment or material which are used by the Company and/or
its sub-licensees, or obliterate all trademarks, trade, business names
or logos of the Seller or any of the Seller's Affiliates which are the
subject of the Trademark License Agreement on all cylinders, bulk tanks,
vehicles, plants, depots, points of sale, franchisees' sites and any
other asset, equipment or material
15
which are used by the Company and its sub-licensees. The Purchaser and
the Company shall hold harmless and indemnify the Seller and any of its
Affiliates for the cost of all such re-branding activity.
6.3 In order to comply with the requirements of Brazilian regulations, the
Purchaser shall at its sole responsibility, cost and expenses request
and obtain all necessary authorisations from the relevant authorities to
promote the re-branding of all Company customers' sites and facilities
and for the supply of its products.
6.4 During the term of validity of the Trademark License Agreement as
referred to in Clause 6.2 above, the Purchaser undertakes that it shall
procure the following:
(i) The Purchaser and the Company shall give Shell Brasil reasonable
access to the Company's properties and premises, and shall
require the sub-licensees to give reasonable access to their
properties and premises, upon reasonable notice from Shell
Brasil during the timeframes specified in the Trademark License
Agreement and for three (3) months following the expiry of each
specific period established in such agreement to check whether
or not they have complied with Clause 4 of the Trademark License
Agreement;
(ii) In the case of the occurrence of any incident after the Closing
Date where the Seller's brand or name, or any brand or name of
any of its Affiliates, is or may be involved, including, without
limitation, accidents or spills at a site or facility prior to
its re-branding to a brand other than a Shell brand (an
"Event"), the Purchaser shall, immediately contact the Sellers
Public Relations Manager in order to enable the Seller to
jointly with the Purchaser manage the resolution of such Event,
including but not limited to the management of any clean-up
operation, and any publicity and announcement relating to the
Event. The Purchaser agrees that any failure by the Seller to
act pursuant to this Clause 6.4 (ii) shall not exonerate the
Purchaser of its obligations to seek the resolution of such
event. The Purchaser further agrees and accepts that all costs,
damages, expenses and liabilities of any kind whatsoever,
including all compensation required to be paid which relate to
an Event, shall be at its sole responsibility, and accordingly
the Purchaser agrees to keep the Seller and any Seller's
Affiliates always harmless from, and fully indemnified against,
any such costs, damages, expenses and/or liabilities, which may
be incurred by the same, including moral damages.
7. Clause Seven - Seller's Warranties and Undertakings
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7.1 Subject to the provisions of Clause 9 below (Purchaser's remedies and
Sellers limitations on liability), the Seller warrants to the Purchaser
that each of the Warranties is accurate in all respects on the Closing
Date, other than any such Warranties that, by their terms, refer to a
specific date other than the Closing Date, in which case are accurate in
all respects on such specific date established therein.
7.2 The Purchaser acknowledges, accepts and agrees that it does not rely on
and has not been induced to enter into this Agreement on the basis of
any warranties, representations, covenants, undertakings, indemnities or
other statements whatsoever, other than those expressly set out in this
Agreement, and acknowledges, accepts and agrees that none of the Seller,
its Affiliates, the Company, or any of their agents, officers or
employees have given any such other warranties, representations,
covenants, undertakings, indemnities or other statements.
7.3 Each of the Warranties shall be construed as a separate and independent
warranty and (except where expressly provided to the contrary) shall not
be limited or restricted by reference toor inference from the terms of
any other Warranty.
7.4 Subject to the provisions of Clause 9 below, the Seller undertakes that
it will hold the Purchaser and its Affiliates (including, without
limitation, the Company) (the "Indemnitees - Purchaser") harmless and
indemnified. and to keep the Indemnitees - Purchaser indemnified from
and fully protected against all actions, claims, proceedings, loss,
damage, all payments, costs or expenses imposed against or incurred by
any of the Indemnitees - Purchaser in relation to or arising, directly
or indirectly, from or in connection with: (a) any breach of any
Warranty given by the Seller pursuant to this Agreement; or (b) any
breach of any covenant or obligation of the Seller pursuant to this
Agreement. The amounts due to the Indemnitee - Purchaser under this
Clause shall be adjusted by IPC-A from the date on which the relevant
final judicial decision or arbitration award is rendered until the date
on which such payment is made.
7.5 The Seller shall cause Shell Brasil to pay any and all invoices that may
be received by the Company after the Closing Date to the extent that
such invoice is related to any agreement entered into by the Company and
the Seller or any Affiliate or Subsidiary of the Seller, before the
Closing Date, including, without limitation, agreements for the
rendering of services.
7.6 In the event a court or judicial order is issued against the Seller or
any of its Affiliates or Subsidiary which determine the creation of an
Encumbrance upon all or part of the Shares, the Seller shall require or
shall cause such Affiliate or Subsidiary to require the competent judge
or
17
court to substitute the Encumbered Shares by another security acceptable
to such judge or court, to be made by the Seller or such Affiliate or
Subsidiary, in favour of such competent judge or court.
7.7 The Seller shall cause Shell Brasil to endeavour its best efforts to
conclude the registration before the Real Estate Registry of the
transfer of title of the real properties of ▇▇▇▇▇ de Caxias and Madre de
Deus to the Company and to cancel the lien on the property of ▇▇▇▇▇ de
Caxias.
8. Clause Eight- Purchaser's Warranties and Undertakings
8.1 The Purchaser is a company duly organized. validly existing and in good
standing under the laws of the Federative Republic of Brazil and has the
requisite corporate power and authority to enter into and perform all
its obligation performed under this Agreement.
8.2 This Agreement constitutes and the other Share Purchase Documents to be
executed by the Purchaser and delivered at Completion will, when
executed, constitute legal, valid and binding obligations of the
Purchaser in accordance with their respective terms.
8.3 The execution and delivery of, and the performance by the Purchaser of
its obligations under, this Agreement and the other Share Purchase
Documents will not:
(a) conflict with or result in a breach of any provision of the
By-laws of the Purchaser;
(b) result in a material breach of, or constitute a material default
under, any instrument or agreement to which the Purchaser is a
party or by which the Purchaser is bound;
(c) result in a material breach of any order, judgment or decree of
any court or governmental agency to which the Purchaser is a
party or by which the Purchaser is bound; or
(d) require the consent of its shareholders or of any other person
or Governmental Authority other than the approval by the
Conseiho Administrativo de Defesa Economica - ▇▇▇▇ and the
consent by the board of directors of the Purchaser, which was
given on or prior to the Closing Date.
8.4 The Purchaser shall, within 90 (ninety) days after the Closing Date,
replace Shell Brasil as guarantor in the guarantee given on behalf of
the Company in the lease agreement for the Company's headquarters. If
the Seller or any of its Affiliates is required to make any payment
under such
18
guaranty, the Purchaser shall reimburse and indemnify the Seller or
Shell Brasil for any amount paid or damage suffered forthwith. The
amounts due by the Purchaser under this Clause shall be adjusted by
IPC-A from the date on which the relevant payment is made or damage is
incurred to the date on which the Purchaser reimburse or indemnify the
Seller or Shell Brasil.
8.5 The Purchaser undertakes that after the Closing Date it will hold the
Seller and its Affiliates (the "Indemnitees - Seller") harmless and
indemnified, and to keep the Indemnitees - Seller indemnified from and
fully protected against all actions, claims, proceedings, loss, damage,
all payments, costs or expenses imposed against or incurred by any of
the Indemnitees - Seller in relation to or arising, directly or
indirectly, from or in connection with: (a) any breach of any warranty
given by the Purchaser pursuant to this Agreement; or (b) any breach of
any covenant or obligation of the Purchaser pursuant to this Agreement.
The amounts due to the Indemnitee - Seller under this Clause shall be
adjusted by IPC-A from the date on which the relevant final judicial
decision or arbitration award is rendered until the date on which such
payment is made.
8.6 The Seller shall not be liable to make any payment under this Agreement
nor shall the Purchaser exercise any right of set-off or counter-claim
against or otherwise withhold payment of any sums stated to be payable
by the Purchaser to the Seller or under any other agreement subsisting
between them unless and until such liability has been agreed or adjudged
payable in final legal or arbitration proceedings.
8.7 In the event that the Seller, at any time after the Closing Date, should
wish to take out insurance against liability under this Ageement, the
Purchaser undertakes to provide such information as the prospective
insurer may reasonably require before effecting such insurance.
9. Clause Nine - Purchaser's Remedies and Seller's Limitations on Liability
9.1 The Purchaser shall not be entitled to claim from the Seller, its
Affiliates and/or any of their directors, officers, agents and/or
employees any indemnity resulting from any loss, cost, expenses and/or
liability (either direct or indirect, and including without limitation
any loss of profit and/or business interruption) which arise from, is
connected with or related to, any fact or matter which has been
originated on a date prior to the Closing Date, even if the effects
arising therefrom occur after the Closing Date, nor shall the Purchaser
be entitled to claim that any such fact or matter causes any of the
Warranties to be breached, if the act or fact that gave rise to such
loss, cost, expense and/or liability has been disclosed as referred to
19
in the Disclosure Letter, in the Audit Financial Statements or in the
Reference Balance Sheet. Accordingly, the Purchaser shall not have the
right to claim, and shall keep at all times the Seller and any of its
Affiliates and/or their directors, officers, agents and/or employees
harmless from, and fully indemnified against, any such loss, damage,
cost, expenses and/or liability, to the extent that the act or fact that
gave rise thereto has been disclosed in the Disclosure Letter, in the
Audit Financial Statements or in the Reference Balance Sheet, except to
the extent that such loss, damage, cost, expense and/or liability arise
from any wilful misconduct (dolo) or fraud of the Seller, its Affiliate,
and/or any of their officers or directors, agents, and/or employees, in
which case the limitations of liability of the Seller established in
Schedule 2 shall apply.
9.1.1 For the avoidance of doubt, the parties agree that the Seller shall
retain responsibility, within the limitations of liability established
in Schedule 2 hereto, for any liabilities or claims that may arise in
the future originating from an act or fact occurred prior to the Closing
Date, to the extent that: (i) such act or fact that originated such
liability or claim has not been expressly disclosed or referred to in
the Disclosure Letter, in the Audit Financial Statements or in the
Reference Balance Sheet; or (ii) such liability or claim could not have
been assessed by the Purchaser from the examination of the Disclosure
Letter, the Audit Financial Statements or the Reference Balance Sheet.
9.1.2 The amounts due to the Indemnitee - Seller under this Clause shall be
adjusted by IPC-A from the date on which the relevant final judicial
decision or arbitration award is rendered until the date on which such
payment is made.
9.2 Notwithstanding the provisions of Clause 9.1 and any other Clause herein
or item of any Schedule in contrary, the Seller undertakes that it will
hold the Indemnitees - Purchaser harmless and indemnified, and to keep
the Indemnitees - Purchaser indemnified from and fully protected against
all actions, claims, proceedings, loss, damage, all payments, costs or
expenses imposed against or incurred by any of the Indemnitees -
Purchaser in relation to or arising, directly or indirectly, from or in
connection with any of the matters listed in Schedule 10. The amounts
due to the Indemnitee - Purchaser under this Clause shall be adjusted by
IPC-A from the date on which the relevant final judicial decision or
arbitration award is rendered until the date on which such payment is
made.
9.3 No liability shall attach to the Seller in respect of claims under the
Warranties (except to the Warranties set forth in paragraphs 1, 2.1, 2.2
and 4.1 of Schedule 1, to which this Clause 9.3 and the limitations set
forth in
20
Schedule 2 shall not apply) if and to the extent that the limitations
set out in Schedule 2 (Limitations on the Seller's liability) apply.
9.4 Except with respect to any of the Warranties set forth in paragraphs 1,
2.1, 2.2 and 4.1 of Schedule 1, if, after the Closing Date, the
Purchaser becomes aware that there has been any breach of the Warranties
or any other term of this Agreement, the Purchaser shall not be entitled
to terminate this Agreement, having as its sole remedy to claim the
appropriate indemnity subject to the provisions of Schedule 2
(Limitations on the Seller's Liability) of this Agreement.
9.5 Except as stated expressly in this Clause, this Clause and Schedule 2
(Limitations on the Seller's liability) shall not limit any other Clause
of this Agreement and in particular Clause 13 (Remedies and Waivers).
10. Clause Ten - Access
10.1 The Purchaser shall make available to the Seller any Books or Records of
the Company (or, if practicable, the relevant parts of those Books or
Records) which are required by the Seller for the purpose of dealing
with its Tax affairs and, accordingly, the Purchaser shall, upon being
given reasonable notice by the Seller and subject to the Seller giving
such undertaking as to confidentiality as the Purchaser shall reasonably
require, procure that such Books and Records are made available to the
Seller for inspection (during Working Hours) and copying (at the Sellers
expense) for and only to the extent necessary for such purpose and for a
period of six years from the Closing Date.
10.2 The Seller shall make available to the Purchaser any documents related
to the Company that are in its possession or in the possession of any of
its Affiliates and, accordingly, the Seller shall, upon being given
reasonable notice by the Purchaser, procure that such documents are made
available to the Purchaser for inspection (during Working Hours) and
copying (at the Purchaser's expense) for a period of six years from the
Closing Date.
11. Clause Eleven - Effect of Completion
Any provision of this Agreement and any other documents referred to in
it which is capable of being performed after but which has not been
performed on or before the Closing Date and all Warranties and covenants
and other undertakings contained in or entered into pursuant to this
Agreement shall remain in full force and effect notwithstanding
Completion.
12. Clause Twelve - Non-Competition
21
12.1 Without the express prior written consent of Purchaser, the Seller shall
not, any time during the five-year period immediately following the
Effective Date, directly or indirectly, own, manage, control or
participate in the ownership, management or control of an LPG
distribution business in the Federative Republic of Brazil and provided,
that the foregoing shall not:
(i) prohibit the Seller from acquiring or in any way being
associated with, any Person which holds a LPG business in
Brazil, as long as such LPG business is not the Core Business of
such Person; or
(ii) restrict the Seller's right to own, manage, control or
participate in the ownership, management or control of a Person
involved in any upstream or downstream gas business in the
Federative Republic of Brazil that does not involve LPG
distribution (as defined by Portaria No. 203/99 issued by
Agencia Nacional do Petroleo - ANP).
12.1.1 Notwithstanding the foregoing, if the Seller or any Affiliate shall, on
or before two years from the Closing Date, acquire any Person which
holds a LPG business in Brazil or in any way associate with any Person
in the LPG business in Brazil, the Seller shall pay to the Purchaser a
penalty of R$6.000.000,00.
12.2 Unless otherwise authorized in writing by the Purchaser. the Seller
agrees that it and its Affiliates will not, for a period of one year
after the Effective Date, employ any person now employed by the Company,
which consent shall not be unreasonably withheld.
13. Clause Thirteen - Remedies and Waivers
13.1 Except as provided in Schedule 2 (Limitations on the Seller's
liability), no delay or omission by any Party to this Agreement in
exercising any right, power or remedy provided by law or under this
Agreement or any other documents referred to in it shall (i) affect that
right, power or remedy; or (ii) operate as a waiver thereof.
13.2 Except as provided in Schedule 2 (Limitations on the Seller's
liability), the single or partial exercise of any right, power or remedy
provided by law or under this Agreement shall not preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy.
13.3 Except as otherwise provided in this Agreement, the rights, powers and
remedies provided in this Agreement are cumulative and not exclusive of
any rights, powers and remedies provided by law.
22
13.4 Any and all penalties payable pursuant to this Agreement may be
collected via specific performance procedures and for that purpose the
Parties hereby acknowledge and represent that any such penalties shall
be deemed as a net, certain and undisputable debt (liquidated debt). In
this regard, this Agreement shall be held and regarded for all purposes
as an extrajudicial enforcement instrument, pursuant to article 585, II
of the Brazilian Code of Civil Procedure.
14. Clause Fourteen - Assignment
14.1 Each Party shall not assign, or purport to assign, all or any part of
the benefit of, or its rights or benefits under, this Agreement
(including, without limitation, the Warranties and any causes of action
arising in connection with any of them), without the prior written
consent of the other party.
14.2 No sub-contract or arrangement made by or entered into by the Purchaser
whereby another person is to perform any or all of its obligations under
this Agreement shall be valid or enforceable against the Seller, unless
the Seller has given its prior and express written consent to any such
sub-contract or arrangement.
15. Clause Fifteen - Further Assurance by Seller
Insofar as it is reasonably able to do so after Completion, the Seller
shall, on being required to do so by the Purchaser, do or procure the
doing of all such acts and/or execute or procure the execution of such
documents as the Purchaser may reasonably consider necessary for vesting
the Shares in the Purchaser in accordance with the terms of this
Agreement.
16. Clause Sixteen - Entire Aqreement
16.1 The Share Purchase Documents constitute the whole and only agreement
between the Parties relating to the sale and purchase of the Shares and,
in entering into the Share Purchase Documents, each Party to this
Agreement acknowledges that it is not relying upon any Pre-contractual
statement which is not expressly set out in this Agreement and/or in the
Share Purchase Documents.
16.2 Except in the case of fraud, no Party shall have any right of action
against the other Party to this Agreement arising out of or in
connection with any draft, agreement, undertaking, representation,
warranty, promise, assurance or arrangement of any nature whatsoever,
whether or not in writing, relating to the subject matter of the Share
Purchase Documents made or given by any person at any time prior to the
date of this
23
Agreement except to the extent that it is repeated in the Share Purchase
Documents.
16.3 This Agreement is signed on an irrevocable and irreversible basis, and
shall be binding upon or inure to the benefit of the Parties hereto and
their respective successors and authorized assigns.
16.4 This Agreement may not be amended or modified except in writing and
executed by both Parties hereto.
17. Clause Seventeen - Notices
17.1 A notice under this Agreement shall only be effective if it is in
writing and in the English language. Subject to the other provisions of
this Clause in respect of notices, faxes are permitted.
17.2 Notices under this Agreement shall be sent to a Party to this Agreement
at its address or number and for the attention of the individual set out
below.
Party Address Facsimile no.
----- ------- -------------
If to the Seller, to: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ (21) 3984-8900
bloco 5, rooms 101
through 701,
Shell Brasil Ltda. and bloco 6, rooms 101
through 601
Aft. Legal Counsel Rio de Janeiro, State
of Rio de Janeiro, the
Federative Republic of
Brazil
If to the Purchaser, to: Avenida Brigadeiro ▇▇▇▇ (55 11) 3177-6107
Antonio, 1343/9(degree)
andar -
Companhia Ultragaz Assessoria Juridica Sao
Paulo,
S.A. State of Sao Paulo,
Att. Legal Counsel The Federative Republic of
Brazil
but a Party may change its notice details on giving notice to the other
Party of the change in accordance with this Clause. That notice shall
only be effective on the day falling five clear Business Days after the
notification has been received or such later date as may be specified in
the notice.
17.3 Any notice given under this Agreement shall, in the absence of earlier
receipt, be deemed to have been duly given as follows:
(i) if delivered personally, on delivery;
(ii) if sent by post, upon receipt thereof evidenced by return
receipt; and
24
(iii) if sent by facsimile, when dispatched, provided the sender is
able to produce evidence of error-free transmission.
17.4 Any notice given under this Agreement outside Working Hours in the place
to which it is addressed shall be deemed not to have been given until
the start of the next period of Working Hours in such place.
17.5 The provisions of this Clause shall not apply in relation to the service
of Service Documents.
18. Clause Eighteen - Announcements
18.1 The first announcement concerning the sale of the Shares and any
announcements concerning the terms and conditions of this Agreement and
any ancillary document or matter shall not be made by either Party to
this Agreement without the prior written approval of the other, such
approval not to be unreasonably withheld or delayed, such approval not
being necessary if such Party is required to do so by:
(i) law, or
(ii) any securities exchange or regulatory or governmental body to
which that Party is subject, wherever situated, whether or not
the requirement has the force of law,
in which case the Party concerned shall take all such steps as may be
reasonable and practicable in the circumstances to notify the contents
of such announcement to the other Party before making such announcement.
18.2 The restrictions contained in Clause 18.1 above shall apply after
Completion for a period of five (05) years from the Closing Date.
18.3 Within 90 (ninety) days from the Closing Date, the Purchaser shall cause
the Company to communicate the change of its corporate name and, when
applicable, the names of its new representatives and, when applicable,
the transfer of the Shares, to the Governmental Authorities it is
registered with, in order to have their records duly updated.
19. Clause Nineteen - Confidentiality
19.1 Subject to Clause 18, each Party to this Agreement shall treat as
confidential all information received or obtained as a result of
entering into or performing this Agreement which relates to:
(i) any term, condition. right and/or obligation contained in this
Agreement;
25
(ii) any matter related to the negotiations which led to the
execution of this Agreement;
(iii) any matter directly or indirectly related to any commercial,
financial, taxation, legal, strategic, operational, market,
pricing or any related matters in respect of the other Party,
being (i), (ii) and (iii) above individually or jointly referred to
herein as "Confidential Information".
19.2 Notwithstanding the other provisions of this Clause, either Party may
disclose Confidential Information:
(i) if and to the extent required by the law of any relevant
jurisdiction;
(ii) to any securities exchange or regulatory or governmental body or
court to which that party is subject, wherever situated. whether
or not the requirement has the force of law;
(iii) to its Affiliates, professional advisers, and auditors;
(iv) if and to the extent the information has come into the public
domain through no fault of that Party; or
(v) if and to the extent the other Party has given prior written
consent to the disclosure.
19.3 Any Confidential Information to be disclosed pursuant to Clause 19.2,
items (i) and (ii) shall be disclosed only after consultation with the
other Party, and any information to be disclosed pursuant to Clause
19.2, item (iii) shall be disclosed only after the disclosing Party has
taken all necessary measures in order to establish confidentiality
obligations with such persons no less stringent than the ones in this
Agreement, without prejudice to the disclosing Party's liability to the
other Party for any unauthorised disclosure of any such information by
any such persons.
19.4 The validity of the confidentiality obligations under this Agreement
shall be for a period of five (05) years as of the date hereof,
irrespective of the continuation of the validity of this Agreement.
19.5 Any breach by any Party of any provision of this Clause 19 will result
in the imposition of a penalty in the amount of R$100.000,00 per
individual breach, without prejudice to any other remedies available to
the other Party.
20. Clause Twenty - Costs and Expenses
26
Except as otherwise stated in any other provision of this Agreement,
each Party to this Agreement shall pay its own costs and expenses in
relation to the negotiations related to the sale and purchase of the
Shares, whether or not such sale and purchase is completed, and the
preparation, execution and carrying into effect of this Agreement and
all other documents referred to in it.
21. Clause Twenty One - Counterparts
This Agreement may be executed in any number of counterparts, but shall
not be effective until both Parties have executed the same counterpart.
Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same
instrument.
22. Clause Twenty Two - Invalidity
If at any time any provision of this Agreement other than the provisions
related to payment of consideration for the sale and purchase of the
Shares or the sale of the Shares is found to be or becomes illegal,
invalid or unenforceable, that shall not affect or impair the legality,
validity or enforceability of any other provision of this Agreement.
23. Clause Twenty Three - Lanquaqe
Each notice, demand, request, statement, instrument, certificate, or
other communication under or in connection with this Agreement shall be
in the English Language.
24. Clause Twenty Four - Governing Law
This Agreement shall be governed by, construed, interpreted and applied
in accordance with the laws of the Federative Republic of Brazil,
excluding any choice of law rules that would refer the matter to the
laws of another jurisdiction.
25. Clause Twenty Five - Dispute Resolution
25.1 Except for the right of the Parties to, at their sole discretion, seek
remedy from any competent court with jurisdiction for any threatened or
actual unauthorized disclosure of Confidential Information under the
terms of this Agreement and for the right of any Party to seek an
injunction from any competent court with jurisdiction to compel the
other party to be bound by the arbitration proceeding, through the
execution of the arbitration commitment ("compromisso arbitrat"),
pursuant to Law n(degree) 9.307/96, any other dispute, controversy or
claims related to this Agreement shall be subject to the following
provisions.
27
(A) Any such dispute, controversy or claim arising out of or in
relation to or in connection with this Agreement, including
without limitation any dispute as to the construction, validity,
interpretation, enforceability or breach of this Agreement,
shall be exclusively and finally settled by arbitration in
accordance with the Arbitration rules of the International
Chamber of Commerce ("ICC"). Any Party may submit such a
dispute, controversy or claim to arbitration by written notice
to the other Party.
(B) The arbitration shall be heard and determined by three (3)
arbitrators. Each Party shall appoint an arbitrator of its
choice within thirty (30) days of the submission of a notice of
arbitration. The Party-appointed arbitrators shall in turn
appoint a presiding arbitrator of the tribunal within thirty
(30) days following the appointment of both Party-appointed
arbitrators. If the Party-appointed arbitrators cannot reach
agreement on a presiding arbitrator of the tribunal and/or one
Party refuses to appoint its arbitrator within said thirty (30)
day period, the appointing authority for the implementation of
any such procedures shall be the chairperson (or its equivalent)
of the Court, who shall appoint independent arbitrators who do
not have any financial or other interest in the dispute,
controversy or claim. All decisions and awards by the
arbitration tribunal shall be made by majority vote.
(C) Unless otherwise expressly agreed in writing by the Parties to
the arbitration proceedings:
(1) The arbitration proceedings shall be held in Rio de
Janeiro. State of Rio de Janeiro, Federative Republic of
Brazil;
(2) The arbitration proceedings shall be conducted in the
English language and the arbitrator(s) shall be fluent
in the English language;
(3) The arbitrator(s) shall be and remain at all times
wholly independent and impartial;
(4) The arbitration proceedings shall be conducted under the
Arbitration Rules of the ICC in effect on the date of
execution of this Agreement by both Parties;
(5) The costs of the arbitration proceedings (including
attorneys' fees and costs) shall be borne in the manner
determined by the arbitrator;
28
(6) The decision of the majority of the arbitrators shall be
reduced to writing; final and binding without the right
of appeal; the sole and exclusive remedy regarding any
claims, counterclaims, issues or accountings presented
to the arbitrators; made and promptly paid in Reais or
the US Dollars equivalent in case of any payment due to
the Seller, subject to foreign exchange regulations in
force at the time of such payment, free of any deduction
or offset; and any costs or fees incident to enforcing
the award, shall to the maximum extent permitted by law
be charged against the Party resisting such enforcement;
(7) Consequential, punitive or other similar damages shall
not be allowed;
(8) The award shall include interest from the date of any
breach or violation of this Agreement, as determined by
the arbitral award, and from the date of the award until
paid in full, at the maximum rate permitted by law;
(9) Judgment upon the award may be entered in any court
having jurisdiction over the person or the assets of the
Party owing the judgment. or application may be made to
such court for a judicial acceptance of the award and an
order of enforcement, as the case may be;
(10) The presiding arbitrator shall not be of the same
nationality as any ultimate parent entities of the
Parties, unless otherwise agreed;
(11) If an arbitrator should die, withdraw or otherwise
become incapable of serving, or refuse to serve, a
successor arbitrator shall be selected and appointed in
the same manner as the original arbitrator;
(12) The arbitrators shall take into account principles of
legal privilege, such as those involving the
confidentiality of communications between a lawyer and a
client;
(13) The Parties waive any right to seek rulings from any
court on issues of law that arise during the arbitration
or to challenge the award on the grounds of the
interpretation of the law adopted by the arbitrators.
25.2 Notwithstanding the provisions of Clause 25.1 above, exclusively for the
purposes of obtaining prior, previous, binding or temporary injunction
29
orders, as well as for mandatory initiation of the arbitration
proceeding, the parties hereby elect the Courts of the City of Rio de
Janeiro, State of Rio de Janeiro, with the exclusion of any other, no
matter how privileged it may be.
26. Clause Twenty Six - Agent for Service
Without prejudice to any other mode of service, the Seller hereby
irrevocably appoints Shell Brasil as its agent for service of process in
relation to any proceedings before any court (including arbitration
tribunals) in the Federative Republic of Brazil in connection with this
Agreement, with the full power to receive any notice, service of process
and any other communication on behalf of the Seller for the purposes
hereof.
27. Clause Twenty Seven - ▇▇▇▇ Submission
Except as set forth in the last sentence of this Clause 27, the Parties
agree that the responsibility for submission of the transaction
contemplated herein to the approval of the Conselho Administrativo de
Defesa Economica - ▇▇▇▇, the Secretaria de Direito Econdmico - SDE, and
the Secretaria de Acompanhamento Econdmico - SEAE (collectively,
("▇▇▇▇"), for the supply of any information requested by ▇▇▇▇, the costs
associated therewith and for any penalty to be imposed by ▇▇▇▇ for
infraction of Law No. 8884/94 shall be borne by the Purchaser, which
shall indemnify, promptly defend and hold the Seller harmless from any
loss arising therefrom. The Completion shall not be delayed by absence
of ▇▇▇▇ approval. Submission to ▇▇▇▇ shall be made within 15 (fifteen)
Business Days as from the date of execution of this Agreement. The
Seller shall provide, upon written request by the Purchaser or ▇▇▇▇, all
reasonable information relating to the Seller that is required by ▇▇▇▇
in a timely and accurate manner and indemnify, promptly defend and hold
the Purchase harmless from any loss arising from the Seller's failure to
provide such information in such manner to the Purchaser or ▇▇▇▇.
28. Clause Twenty Eight - Monetary Correction
Except as otherwise expressly established herein, all amounts referred
to in this Agreement and payable after the Closing Date shall be
adjusted by IPC-A from the Closing Date until the respective payment
date. The amounts of the Purchase Price and the Shell Brasil Loan and
the amounts set forth in paragraph 2.1 (A) of Schedule 2 shall also be
adjusted by IPC-A as from the Closing Date, for the purposes of
calculating the limits set forth in paragraph 2.' of Schedule 2.
29. Intervening Party
30
Ultra signs this Agreement as an intervening party, acknowledging all
its terms and conditions and as a legal successor of the Purchaser in
all Purchaser's rights and obligations hereunder, as from the date the
Shares are transferred from Purchaser to Ultra (or to any other third
party) up to the date such rights and obligations cease to exist.
IN WITNESS WHEREOF the parties sign this shares sale and purchase
agreement in three 3 (three) counterparts of identical form and content,
to one sole effect, in the presence of the 2 (two) undersigned
witnesses.
Rio de Janeiro, August 08, 2003.
SHELL PETROLEUM N.V.
By /s/ Alexander Constatjin/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------------------
Name: Alexander Constatjin/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
OXITENO NORDESTES A. INDUSTRIA E COMERCIO
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
COMPANHIA ULTRAGAZ S.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title:
Witnesses
1. /s/ ▇▇▇▇▇▇▇ Genzini Filho
-----------------------------------------------------------
Name: ▇▇▇▇▇▇▇ Genzini ▇▇▇▇▇
▇▇:
2. /s/ Guilherme Parente Caldas ▇▇▇▇▇▇▇
-----------------------------------------------------------
Name: Guilherme Parente Caldas ▇▇▇▇▇▇▇
▇▇:
31
Schedule I - Warranties
Clause Page
1. Ownership of the Shares...........................................
2. Capacity of the Seller ...........................................
3. Group structure, etc..............................................
4. Options, mortgages and other encumbrances.........................
5. Accuracy of information...........................................
6. Reference Balance Sheet ..........................................
7. Events since the Reference Date ..................................
8. Contracts and commitments.........................................
9. Powers of attorney................................................
10. Substantial dependence............................................
11. Licences .........................................................
12. Bank borrowings...................................................
13. Insolvency .......................................................
14. Litigation........................................................
15. Ownership of assets ..............................................
16. Property..........................................................
17. Intellectual Property.............................................
18. Competition.......................................................
19. Insurances........................................................
20. Employment .......................................................
21. The Environment...................................................
22. The Reference Balance Sheet and Tax ..............................
23. Tax returns, disputes, records and claims, etc....................
24. Duties, etc.......................................................
25. Deductions and withholdings.......................................
26. Non Competition...................................................
27. No Undisclosed Liability..........................................
28. Sufficiency of Assets ............................................
29. Compliance with Regulations.......................................
30. Events since July 31, 2003 .......................................
31. Franchisees, Owners of POS, etc...................................
32
THE LIABILITIES ARISING FROM THE FOLLOWING WARRANTIES, WHICH ARE GIVEN BY THE
SELLER, ARE SUBJECT TO THE LIMITS OF LIABILITY REFERRED TO IN CLAUSE 9.3 OF THE
SHARE SALE AND PURCHASE AGREEMENT TO WHICH THEY ARE AN ATTACHMENT
AS PER CLAUSE 9.1 OF THE SHARE SALE AND PURCHASE AGREEMENT AND SUBJECT TO THE
TERMS THEREOF, ALL THE ACTS OR FACTS THAT GIVE RISE TO LOSSES, COSTS, EXPENSES
AND/OR LIABILITIES THAT HAVE BEEN DISCLOSED TO PURCHASER UNDER THE DISCLOSURE
LETTER SHALL BE CONSTRUED AS EXCEPTIONS TO THE WARRANTIES HEREBY GIVEN AS IF
THEY WERE EXPRESSLY WRITTEN HEREIN
FOR CONVENIENCE PURPOSES ONLY, SOME OF THE WARRANTIES HEREBY GIVEN REFER TO THE
CLAUSE NUMBER OF THE DISCLOSURE LETTER TO WHICH THE WARRANTY IS MOST LIKELY TO
RELATE BUT A DISCLOSURE MADE IN THE DISCLOSURE LETTER: (i) APPLIES TO ALL OF THE
WARRANTIES AS IS OR MAY BE APPROPRIATE; AND (ii) SHALL NOT BE DEEMED IN ANY WAY
TO APPLY ONLY TO THE SPECIFIC WARRANTY TO WHICH A CLAUSE NUMBER REFERS.
1. Ownership of the Shares
The Seller and the Nominees are the sole owners of the Shares and the
Shares constitute the entire issued and allotted share capital of the Company
and all of them are fully paid up and they are free and clear from all
Encumbrances.
2. Capacity of the Seller
2.1. The Seller has the requisite corporate power and authority to enter into
and perform this Agreement and the other Share Purchase Documents to which
it is a party;
2.2. This Agreement constitutes and the other Share Purchase Documents to be
executed by the Seller and delivered at completion will, when executed.
constitute legal, valid and binding obligations of the Seller in
accordance with their respective terms;
2.3. The execution and delivery of, and the performance by the Seller of its
obligations under, this Agreement and the other Share Purchase Documents
will not:
(A) contravene, conflict with or result in a breach of any provision of the
memorandum or articles of association of the Seller;
33
(B) contravene, conflict with or result in a material breach of, or constitute
a default under or give any person the right to declare a default or
execute any remedy under, or accelerate the maturity or performance of, or
to cancel, terminate or modify, any instrument to which the Seller is a
party or by which the Seller is bound, which could adversely affect the
Company or the transaction contemplated in this Agreement;
(C) contravene, conflict with or, result in a breach of any order,
authorization, license, concession, permission, judgment or decree of any
court or governmental agency to which the Seller and/or the Company is a
party or by which the Seller and/or the Company is bound;
(D) materially contravene, conflict with or result in a violation of, or, so
far as the Seller is aware, give any Governmental Authority or a person
the right to refrain the Parties from executing the transaction
contemplated herein or to exercise any remedy or obtain any relief under,
any law or statute or any order to which the Company or the Seller, or any
of the assets owned or used by the Company may be subject;
(E) except for the approval by the Conselho Administrativo de Defesa Economica
- ▇▇▇▇, require any consent of its shareholders or of third parties
(ncluding without limitaiton any Governmental Authority) other than the
manifestation of such consent which has been delivered to the Purchaser.
3. Group structure, etc.
3.1. There is no agreement or commitment outstanding which calls for the
allotment, issue or transfer of, or accords to any person the right to
call for the allotment or issue of, any shares (including the Shares) or
debentures in or securities of the Company.
3.2. The Company has no Subsidiary and, except as listed in the Disclosure
Letter, item 3.2, no interest in the share capital of any person.
3.3. Except for the agreements with Minasgas Distribuidora de Gas Combustivel
Ltda. and Copagaz Distribuidora de Gas Ltda. for the filling of cylinders,
the Company does not act or carries on business in partnership or through
a joint venture or consortium with any other person or is a member
(otherwise than through the holding of share capital) of any corporate or
unincorporated body, undertaking or association.
4. Encumbrances
4.1. There is no Encumbrance on, over or affecting the Shares or any of them
and there is no agreement or commitment to give or create any and, so far
as the Seller is aware, no claim has been made by any person to be
entitled to any.
34
4.2. Except as listed in the Disclosure Letter and for (i) any liens for taxes,
assessments or governmental charges or levies which are not material and
may be paid without penalty, (ii) liens which are not material arising in
the ordinary course of business, or (iii) liens which neither materially
detract from the value of such assets nor materially interfere with their
present use, no Encumbrance (other than a lien arising by operation of law
in the ordinary course of trading) on, over or affecting the whole or any
part of the undertaking or material assets of the Company is outstanding
(other than liens imposed by a court order with respect to which the
Company has not been notified yet) and there is no agreement or commitment
to give or create any and, so far as the Seller is aware, no claim has
been made by any perscn to be entitled to any.
5. Accuracy of information
5.1. The information given in Schedule 3 (Basic information about the Company)
is on the Closing Date true and accurate in all material respects.
5.2. The copies of the by-laws (Estatutos Socials) of the Company, which have
been supplied to the Purchaser are, complete and accurate in all respects.
5.3. Except as listed in the Disclosure Letter, from January 1, 1998, the Books
and Records of the Company have been properly kept and contain records
which are accurate and complete in all material respects and no notice or
allegation that any of them is materially incorrect or should be rectified
has been received.
5.4. So far as the Seller is aware, all documents which should have been
delivered by the Company to the Registrar of Companies have been so
delivered.
6. Reference Balance Sheet
6.1. The Reference Balance Sheet:
(A) was prepared in accordance with accountancy practices generally accepted
in Brazil at the time they were prepared; and
(B) reflect the consistent application of such accountancy practices generally
accepted in Brazil throughout the periods indicated.
(C) except as listed in the Disclosure Letter, showed a true, correct and
complete view of the assets, liabilities, financial position and results
of the Company on the Reference Date.
6.2. Except as disclosed in the Disclosure Letter, in item 6.2, all accounts
receivable of the Company, whether reflected in the Reference Balance
Sheet
35
or otherwise, represent sales actually made in the ordinary course of
business and are current and collectible net of any reserves shown on the
Reference Balance Sheet.
6.3. All of the inventories of the Company reflected in the Reference Balance
Sheet consist of a quality and quantity usable and sellable in the
ordinary and usual course of business, except for items of obsolete
materials and materials of below standard quality, all of which items have
been written off or written down on the Reference Balance Sheet to fair
market value or for which adequate reserves have been provided therein.
All of the inventories of the Company that are comprised of LPG have been
priced at the average cost. The quantities of the inventory are not
excessive,, but are reasonable and warranted in the present circumstances
of the Company.
7. Events since the Reference Date
7.1. Since the Reference Date:
(A) there has been no material adverse change in the financial position of the
Company;
(B) the business of the Company has been carried on, in all material respects,
in the normal course, consistent with past practices;
(C) the Company has not (i) acquired, sold, disposed, leased or encumbered any
asset or property, (ii) incurred, paid, discharged or satisfied any
liability or obligation,(iii) made any expenditure, (iv) declared any
dividend or (v) increased its bad debt, contingency or other reserve, in
any of the cases of items (i) trough (v) above, in an amount which exceeds
R$500.000,00 per item, except for those items and for the amounts listed
in the Disclosure Letter, item 7.
8. Contracts and commitments
8.1. The Company is not a party to any contract or arrangement, which
materially restricts its freedom to carry on its business in such manner
as it fits, or to any distributorship or management agreement.
8.2. The Seller is not aware of any breach of any person, or any invalidity, or
grounds for termination, rescission, avoidance or repudiation of, any
contract to which the Company is a party which would have a significant
effect on the Company's business, except for the agreements listed in the
Disclosure Letter, item 8.2.
36
8.3. Except as listed in the Disclosure Letter, the Company is not in breach of
or has given any person grounds for termination, rescission, avoidance or
repudiation of, any material contract to which it is a party.
8.4. Except for any guarantee or warranty implied by law or contained in its
standard terms of business, the Company has not given any guarantee or
warranty in respect of goods or services supplied or contracted to be
supplied by it.
8.5. The Company is not a party to any joint venture or consortium agreement.
8.6. Except for the contracts listed in the Disclosure Letter, item 8.6, the
Company is not a party to any contract which falls within any of the cases
specified below.
(A) of a value which has material consequences in terms of expenditure or
revenue expectations or it relates to matters not within the ordinary
business of the Company or it constitutes a commercial transaction or
arrangement deviant from the usual pattern for the Company; or
(B) the contract is expressed to be of five years or greater duration; or
(C) except for the Shell Brasil Loan, any contract with Affiliates,
shareholders, directors or officers that may not be terminated by it on a
notice of no longer than thirty days and without liability, penalty or
premium; or
(D) except for the Shell Brasil Loan and the Service Agreement, the Company is
not a part in any other contract with the Seller or any of its Affiliates;
and for this purpose "contract" includes any understanding, arrangement or
commitment however described;
9. Powers of attorney
The Company has not given any power of attorney or other written authority that
is still outstanding or effective to any person to enter into any contract or
commitment on its behalf (other than to its directors, officers and employees to
enter into routine trading contracts in the normal course of their duties).
10. Substantial dependence
Except as listed in the Disclosure Letter, neither in the financial period
ending on the Reference Date nor in the period since the Reference Date has any
person (together with other persons connected with such person) purchased from
or sold to the Company more than 10 per cent of the aggregate amount of all
sales or purchases made by the Company during such period.
37
11. Licences
(A) except for the licences listed in the Disclosure Letter, items 11 and 21,
all licences, consents and other permissions and approvals (the absence of
which would have a Material Adverse Effect on the business of the Company)
required for or in connection with the carrying on of the business being
carried on by the Company prior to or on the Closing Date are in full
force and effect; and
(B) no notice has been received by the Company that the licences, consents,
permissions or approvals referred to in item (A) above are likely to be
revoked.
12. Absence of Indebtedness
12.1. Except for the Shell Brasil Loan and as listed in the Disclosure Letter,
as of the Closing Date the Company has not any Indebtedness with any
person, including, without limitation, the Seller, any Affiliate of the
Seller and any financial institution.
13. Insolvency
13.1. No order has been made and no resolution has been passed for the winding
up of the Company or for a provisional liquidator to be appointed in
respect of the Company and, so far as the Seller is aware, no petition has
been presented and no meeting has been convened for the purpose of winding
up the Company.
13.2. No receiver has been appointed in respect of the Company or all or any of
its assets.
13.3. The Company is not insolvent, or unable to pay its debts or has stopped
paying its debts as they fall due.
13.4. No concordata has been proposed in respect of the Company.
13.5. No event analogous to those specified in sub-paragraphs 13.1 to 13.4 of
this Schedule has occurred in relation to Company in accordance with the
laws of Brazil.
14. Litigation
14.1. The Company is not engaged in any material litigation, arbitration or
other dispute resolution process, administrative or criminal proceedings,
whether as plaintiff, claimant, defendant or otherwise, except for those
listed in the Disclosure Letter, item 14.1.
38
14.2. No material litigation, arbitration or other dispute resolution process,
administrative or criminal proceedings by or against the Company is
pending, or, so far as Seller is aware, threatened or expected, except for
those listed in the Disclosure Letter, item 14.2.
15. Ownership of assets
Each of the material assets (other than Property) included in the Reference
Balance Sheet or acquired by the Company since the Reference Date (other than
current assets sold, realised or applied in the normal course of trading
consistent with past practice) is owned both legally and beneficially by the
Company and each of those assets capable of possession is in the possession of
the Company (save where in the possession of a third party in the normal course
of business).
16. Property
16.1. All the Relevant Properties leased by the Company are subject to valid and
binding lease agreements that are in full force and effect and enforceable
in accordance with their terms.
16.2. The Disclosure Letter, item 16.2, contains an accurate and complete list
of all real property owned and/or leased or subleased by the Company,
including any transferable permits, licenses or authorizations and other
accessories thereto, and the properties on such Disclosure Letter, item
16.2, are sufficient for the Company to operate its business as presently
conducted or proposed to be conducted. There are no easements,
rights-of-way or passage related to any of such properties. Except as
listed in the Disclosure Letter, item 16.2, the Company has good and
marketable title to all of the real property it owns, free and clear of
any Encumbrances except for (i) any liens for taxes, assessments or
governmental charges or levies which are not material and may be paid
without penalty, (ii) liens which are not material arising in the ordinary
course of business, or (iii) liens which neither materially detract from
the value of such real properties nor materially interfere with their
present use. Except as listed in the Disclosure Letter, item 16.2, no
condemnation proceeding or other material litigation is pending or, to the
knowledge of the Seller, threatened, with respect to the ownership of such
real property by the Company.
17. Intellectual Property
17.1. Details of all registered Intellectual Property owned by the Company are
set out in the Disclosure Letter, item 17. The Company owns or is licensed
or otherwise possesses legally enforceable rights to use its Intellectual
Property and the consummation of the transactions contemplated in this
Agreement will not impair such ability in any respect.
39
17.2. Other than the Trademark Licence Agreement and the other agreements listed
in the Disclosure Letter, item 17, the Company is not a party to any
Intellectual Property licence agreement.
17.3. So far as the Seller is aware, the activities of the Company do not
infringe the Intellectual Property of any third party, except for the use
of the Intellectual Property listed in the Disclosure Letter, item 17.
17.4. So far as the Seller is aware, no third party is infringing any
Intellectual Property owned by the Company.
17.5. Save in the ordinary course of business or to its employees, the Company
has not disclosed any confidential business information to any third party
other than under an obligation of confidentiality.
18. Competition
18.1. The Company has not received any notice concerning any agreement to which
it is a party to and in relation to which (in total or in relation to any
part, term or condition thereof) competent competition authorities have
started an investigation or against which a claim has been filed for
breach of any competition law provision.
18.2. The Company has not given an undertaking to, or is subject to any order of
or, so far as the Seller is aware, investigation by, or has received any
request for information from, any competent competition authority where
such undertaking, order, investigation or request for information is
likely to cause a material loss or liability to the Company, except for
those listed in the Disclosure Letter, item 18.2.
19. Insurances
The Company is not a party to and has no interest in any insurance policy.
20. Employment
20.1. Since the Reference Date, no change has been made in the emoluments or
other terms of employment of any employee of the Company except for
increases in emoluments made in accordance with normal Company practice,
and no such change, and no negotiation or request for such a change, is
due or expected within six months from the date of this Agreement.
20.2. There is no dispute between the Company and any trade union existing,
pending or (so far as the Seller is aware) threatened to the Company and
40
there is no collective bargaining (or similar) agreement (whether binding
or not) to which the Company is a party.
20.3. A list of all labor disputes, lawsuits, complaints and other proceedings
actually pending or, to the awareness of the Seller, threatened against
the Company are set out in the Disclosure Letter, item 20.
20.4. Any contract of employment with any employee to which the Company is a
party can be terminated by the Company without payment of severance or
termination liabilities or obligations or damages or compensation (other
than that payable in accordance with applicable law and regulations) by
giving at any time only the minimum period of notice applicable in
accordance with the law.
20.5. Except as disclosed in the Disclosure Letter, item 20, no employee of the
Company has given notice terminating his/her contract of employment or is
under notice of dismissal and no amount due to or in respect of any such
employee or former employee of the Company is in arrears and unpaid other
than his/her salary for the month current on the Closing Date.
20.6. The Company has not experienced any work stoppage, labor strike, slowdown,
lockout or other labor difficulty since November 2000.
20.7. Except as listed in the Disclosure Letter, item 20, the Company is in
compliance, in all material respects, with all applicable laws respecting
employment and employment practices.
21. The Environment
21.1. In this paragraph 21:
"Environmental Laws" means any Brazilian law, as amended as of the date hereof,
all rules and regulations promulgated pursuant to any of the above laws, and any
other Federal, state or local law, statute, ordinance, rule or regulation
relating to the regulation or protection of the environment or to emissions,
discharges, Releases or threatened releases of Hazardous Materials or wastes
into the environment (including, without limitation, ambient air soil, surface
water, ground water, wetlands, land or subsurface strata), or otherwise relating
to the manufacture, processing, distribution, sale, use, treatment, storage,
disposal, discharge, recycling, transport or handling of Hazardous Materials or
wastes;
"Environmental Matters" means any matter arising out of or relating to the
environment, human safety or health or the production, storage, handling, use,
emission, release, discharge or disposal of Hazardous Material;
41
"Environmental Permits" means any permit, licence, consent or authorisation
required by Environmental Laws as at the Closing Date in relation to the
operation of the business of the Company;
"Hazardous Material" means any pollutants, contaminants or toxic or hazardous
substances or materials that are regulated by, or form the basis of liability
under, any Environmental Laws; and
"Waste" means any waste including anything which is abandoned, unwanted or
surplus irrespective of whether it is capable of being recovered or recycled or
has any value.
21.2. Except as listed in the Disclosure Letter, item 21, up until the Closing
Date the Company is in compliance in all material respects with, and has
not been in violation of or liable under any Environmental Laws, and all
Environmental Permits (the absence of which would have a Material Adverse
Effect) have been obtained and have been complied with in all material
respects.
21.3. The Company has not received and, so far as the Seller is aware, there is
no basis to expect that it will receive, any citation, directive, inquiry,
notice, order, summons, warning or other communication that relates to
Hazardous material and/or Waste which may have been originated from the
Company's activities;
21.4. Except as listed in the Disclosure Letter, item 21, there are no pending
or, as far as the Seller is aware, threatened claims, Encumbrances or
other restrictions of any nature, resulting from any Environmental Law
breached by the Company or arising under or pursuant to any Environmental
Law, with respect to or affecting the Company.
21.5. So far as the Seller is aware, except as provided for in the Disclosure
Letter, item 21, there has been no spilling, leaking, emitting,
discharging, depositing, escaping, leaching, dumping or other releasing
into the environment, whether intentional or unintentional, of any
Hazardous Material or Waste at or from the Company's facilities or
properties owned or leased by the Company in the conduction of its
business, which represents a breach of any Environmental Law.
22. The Reference Balance Sheet and Tax
22.1. The Company has no liability in respect of Taxation (whether actual or
contingent):
(A) assessable or payable by reference to profits, gains, income or
distributions earned, received or paid or arising or deemed to arise on or
at any time prior
42
to the Reference Date or in respect of any period starting before the
Reference Date; or
(B) referable to transactions effected by Company on or before the Reference
Date that is not disclosed or provided for in the Reference Balance Sheet.
22.2. The amount of the provision for deferred Taxation in respect of the
Company contained in the Reference Balance Sheet was, at the Reference
Date, adequate and in accordance with accountancy practices generally
accepted in Brazil.
22.3. If all facts and circumstances which are known to the Company or the
Seller on the Closing Date had been known at the time the Reference
Balance Sheet was drawn up, the provision for deferred Taxation that would
be contained in the Reference Balance Sheet would be no greater than the
provision which is so contained, except for those amounts arising from
contingent tax liabilities listed in the Disclosure Letter, item 22.
23. Tax returns, disputes, records and claims, etc.
23.1. Except as listed in the Disclosure Letter, item 23, the Company has filed
or caused to be filed all proper returns required to be made, and has
supplied or caused to be supplied all material information required to be
supplied, to any tax authority and have duly paid or caused to be duly
paid in full or made a provision for the payment of, all material taxes
within the last six years. All such tax returns are correct and complete
and accurately reflect all liabilities for taxes for the periods covered
thereby.
23.2. There is no dispute or disagreement outstanding nor is any contemplated at
the Closing Date with any tax authority regarding liability or, so far as
Seller is aware, potential liability to any tax recoverable from the
Company or regarding the availability of any relief from tax to the
Company, except for those listed in the Disclosure Letter, item 23.
23.3. So far as the Seller is aware, the Company has sufficient records relating
to past events to calculate the tax liability which would arise on any
disposal or on the realisation of any asset owned at the Closing Date by
the Company or acquired by the Company since that date but before the
Closing Date.
23.4. The Company has duly submitted all claims and disclaimers or withdrawals
of claims which have been assumed to have been made for the purposes of
the Reference Balance Sheet.
23.5. The amount of tax chargeable on the Company during any accounting period
ending on or within six years before the Reference Date has not, to any
material extent, depended on any concession, agreement or other formal
43
or informal arrangement with any revenue authority, including (but without
limitation) the federal tax authorities (Secretaria da Receita Federal).
23.6. The Company has not received any notice from any tax authority, including
the Secretaria da Receita Federal, which required or will or may require
Company to withhold tax from any payment made since the Reference Date or
which will or may be made after the date of this Agreement.
23.7. A list of all tax disputes, lawsuits, complaints and other proceedings
actually pending or, to the awareness of the Seller, threatened against
the Company are set out in the Disclosure Letter, item 23. No other
federal, state, municipal, local or foreign audits, examinations,
investigations or other administrative proceedings or court proceedings
are presently pending with regard to any tax or tax return of the Company.
There are no pending tax audits or proceedings concerning the Company.
24. Duties, etc.
All tax on distribution or circulation of goods and services ("ICMS"), tax on
import duty and other taxes or charges payable upon the sale, transit,
importation or exportation of goods traded, imported, exported, owned or used by
the Company have been paid in full, except for those amounts that are being
contested in good faith and by proper proceeding and listed in the Disclosure
Letter, item 24.
25. Deductions and withholdings
During the last six years, the Company has made all deductions in respect, or on
account of, any tax from any payments made by it which it is obliged or entitled
to make and has accounted in full to the appropriate authority for all amounts
so deducted.
26. Non-Competition
The Seller hereby acknowledges and accepts the benefits that may derive from
this Agreement and represents that the Purchase Price paid by Purchaser includes
a fair and reasonable compensation for the non-compete obligation created
pursuant to Clause 12 of this Agreement.
27. No Undisclosed Liability
Without prejudice of the other Warranties set forth in this Schedule 1, except
(a) as disclosed in the Reference Balance Sheet and in the Disclosure Letter and
(b) for liabilities and obligations incurred in the ordinary course of business
and consistent with past practice since the Reference Date pursuant to the terms
of this Agreement, the Company has no liability or obligation of any nature,
whether or
44
not accrued, contingent or otherwise, that has, or could have, a Material
Adverse Effect on the Company.
28. Sufficiency of Assets
Except as listed in the Disclosure Letter, the goods and assets (including
Intellectual Property) owned, licensed, leased or rented by the Company form the
totality of the property and assets reasonably necessary to conduct the
Company's businesses, as they are presently conducted.
29. Compliance with Regulations
The Company is in compliance, in all material respects, without limitation, with
all regulations, orders, decrees and ordinances relating to trade regulation,
labor, worker health and safety, benefits, employment, food and consumer product
regulatory matters and others.
30. Events since July 31, 2003
30.1. Since the July 31, 2003, the Company has conducted its business only in
the ordinary and usual course and consistent with past practice and the
Company has not:
(A) suffered any material adverse change in its working capital, financial
condition, results of operation, assets, liabilities (absolute, accrued,
contingent or otherwise), reserves, business or operations; or
(B) incurred any liability or obligation (absolute, accrued, contingent or
otherwise), except immaterial items incurred in the ordinary course of
business and consistent with past practice, which exceeds R$100.000,00
(counting obligations or liabilities arising from one transaction or a
series of similar transactions, and all periodic installments or payments,
as a single obligation or liability), or increased, or experienced any
material change in any assumptions underlying or methods of calculating,
any bad debt, contingency or other reserves; or
(C) paid, discharged or satisfied any material claim, liability or obligation
(whether absolute, accrued, contingent or otherwise) other than the
payment, discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities and obligations incurred in
the ordinary course of business and consistent with past practice since
July 31, 2003; or
(D) permitted or allowed any of its property or assets (real, personal or
mixed, tangible or intangible) to be subjected to any Encumbrance,
restriction or charge of any kind, except for liens for current taxes not
yet due; or
45
(E) written down the value of any inventory (including write-downs by reason
of shrinkage or ▇▇▇▇-down) or written off as uncollectible any notes or
accounts receivable, except for immaterial write-downs and write-offs in
the ordinary course of business and consistent with past practice; or
(F) cancelled any debts or waived any claims or rights which exceeds
R$100.000,00; or
(G) sold, transferred, or otherwise disposed of any of its properties or
assets (real, personal or mixed, tangible or intangible), except in the
ordinary course of business and consistent with past practice; or
(H) made any single capital expenditure or commitment in excess of
R$100.000,00 for additions to property, plant, equipment or intangible
capital assets or made aggregate capital expenditures and commitments in
excess of R$100.000,00 for additions to property, plant, equipment or
intangible capital assets; or
(I) declared, paid or set aside for payment any dividend or other distribution
in respect of its capital stock or redeemed, purchased or otherwise
acquired, directly or indirectly, any shares of capital or other
securities of the Company; or
(J) made any change in any method of accounting or accounting practice; or
(K) paid, loaned or advanced any amount to, or sold, transferred or leased any
properties or assets (real, personal or mixed, tangible or intangible) to,
or entered into any agreement or arrangement with, any of its officers or
directors or any Affiliate of any of its officers or directors except for
directors' fees and compensation to officers at rates not exceeding the
rates of such fees and compensation paid until the period ended on July
31, 2003.
31. Franchisees, Owners of POS, etc.
The Schedules 2, 3, 4 and 5 of the Trademark License Agreement has a full and
complete list of (i) all owners of all points of sale; (ii) all franchisees; and
(iii) all current carrier companies, of the Company as of the Closing Date.
46
Schedule 2 - (Limitations on the Seller's liability)
Clause Page
1. Warranties and Undertakings .......................................
2. Limitations on liability under Warranties and Undertakings ........
2.1 Limitation on quantum.......................................
2.2 Time limits for bringing claim..............................
2.3 Conduct of litigation.......................................
2.4 No liability if loss is otherwise compensated for...........
2.5 Acts of the Purchaser.......................................
2.6 Allowance, provision or reserve in the Reference
Balance Sheet...............................................
2.7 Future legislation..........................................
2.8 Taxation....................................................
2.9 Payment of claim to be reduction in purchase price..........
47
1. Warranties and Undertakings
1.1. For the purposes of this Schedule, "Undertakings" means any undertaking
given by or on behalf of the Seller in or pursuant to this Agreement. For
the avoidance of doubt, "damages" includes any payment under any
Undertaking.
1.2. Subject to paragraph 1.3 below, notwithstanding anything in this Agreement
to the contrary, the provisions of this Schedule shall operate to limit
the liability of the Seller both in respect of any claim by the Purchaser
or the Company for any breach of or inaccuracy in the Warranties or in
respect of the Undertakings.
1.3. This Schedule 2 and the limitations set forth hereof shall not apply,
under no circumstances, to the Undertakings under Clauses 3, 4, 6, 7.5,
7.6, 10.2 and 12 of this Agreement and to the Warranties under paragraphs
1, 2.1, 2.2 and 4.1 of Schedule 1 of this Agreement.
1.4. The only Warranties given:
(A) in respect of the Reference Balance Sheet are those contained in
paragraph 6 (Reference Balance Sheet) of Schedule 1 (Warranties). None
of the other Warranties shall or shall be deemed to be, whether
directly or indirectly, a Warranty in respect of the Reference Balance
Sheet and the Purchaser acknowledges and agrees that the Seller makes
no other representation or warranty as to the Reference Balance Sheet;
(B) in respect of Property are those contained in paragraph 16 (Property)
of Schedule 1 (Warranties). None of the other Warranties shall or shall
be deemed to be, whether directly or indirectly, a Warranty in respect
of Property and the Purchaser acknowledges and agrees that the Seller
makes no other representation or warranty as to Property;
(C) in respect of Intellectual Property (or know-how and agreements
relating to Intellectual Property) are those contained in paragraph 17
(Intellectual Property) of Schedule 1 (Warranties). None of the other
Warranties shall or shall be deemed to be, whether directly or
indirectly, a Warranty in respect of Intellectual Property and the
Purchaser acknowledges and agrees that the Seller makes no other
representation or warranty as to Intellectual Property (or know-how and
agreements relating to Intellectual Property);
(D) in respect of employment matters are those contained in paragraph 20
(Employment) of Schedule 1 (Warranties). None of the other Warranties
shall or shall be deemed to be, whether directly or indirectly, a
Warranty in respect of employment matters and the Purchaser
acknowledges and
48
agrees that the Seller makes no other representation or warranty as to
employment matters;
(F) in respect of the Environment are those contained in paragraph 21 (The
Environment) of Schedule 1 (Warranties). None of the other Warranties
shall or shall be deemed to be, whether directly or indirectly, a
Warranty in respect of the Environment and the Purchaser acknowledges
and agrees that the Seller makes no other representation or warranty as
to the Environment; and
(G) in respect of Tax are those contained in paragraphs 22, 23, 24 and 25
(The Reference Balance Sheet and Tax, Tax events since the Reference
Date, Tax returns, disputes, records and claims, etc., Duties, etc. and
Deductions and withholdings) of Schedule 1 (Warranties). None of the
other Warranties shall or shall be deemed to be, whether directly or
indirectly, a Warranty in respect of Tax and the Purchaser acknowledges
and agrees that the Seller makes no other representation or warranty as
to Tax.
2. Limitations on Liability under Warranties and Undertakings
2.1. Limitation on Quantum
(A) The Purchaser shall not be entitled in any event to damages or other
amount in respect of any individual substantiated claim against the
Seller under any of the Warranties or Undertakings unless the amount
of any such individual substantiated claim: (i) shall exceed
R$100.000,00 if such claim arises in connection with any of the
matters listed in paragraph 1 of Schedule 10, or (ii) shall exceed
R$500.000,00, if such claim arises in connection with any other
matter. Notwithstanding the provisions of this paragraph 2.1 (A),
any claim arising in connection with the matters listed in paragraph
2 of the Schedule 10 shall not be subject to any limitation on
quantum.
(B) For the purposes of paragraph (A) above, "individual" means a single
substantiated claim of the Purchaser against the Seller related to
one single event, circumstance, act or omission, which caused a
breach of any Warranty or Undertaking and resulted in a loss to the
Purchaser or any of its Affiliates. For the avoidance of doubt, a
single claim by the Purchaser that arise from more than one
substantiated claim of the Purchaser shall not be deemed as an
individual substantiated claim for the purpose of paragraph (A)
above.
(C) For the purposes of paragraph (A) above, "substantiated" means a
claim for which the Seller may be liable in accordance with the
terms and conditions of this Agreement and which is subject to a
final, unappealable award by a competent court or arbitration panel
of
49
competent jurisdiction and with respect to which the amount involved
has already been quantified.
(D) The total aggregate liability of the Seller under or pursuant to
this Agreement (whether for breach of the Warranties or under the
Undertakings or otherwise) shall not in any event exceed 50% (fifty
percent) of the sum of the Purchase Price and the Shell Brasil Loan.
(E) The liability of the Seller arising out of the breach of any
Warranty shall not be subject to the limitations set forth in this
paragraph 2.1 when (i) the Seller had knowledge prior to the Closing
Date of the act or fact that have caused the breach of such
Warranty; and (ii) the Seller has not disclosed in the Disclosure
Letter such act or fact that have caused the breach of such
Warranty.
(F) Materiality qualifications to a Warranty shall not be taken into
account when the damage caused to the Company or the Purchaser as a
result of such breach exceed the minimum thresholds for individual
claims set forth in paragraph 2.1 (A) of this Schedule 2.
2.2. Time limits for bringing claim
(A) No claim shall be brought against the Seller in respect of any
breach of the Warranties or under any of the Undertakings unless the
matter which gives rise to the breach or claim has been the subject
of an arbitration, administrative or judicial dispute filed (i) by
third parties against the Company or the Purchaser; or (ii) by the
Company or the Purchaser against the Seller and in any event within
the timeframe set forth below.
(i) on or before the 6th anniversary of the Closing Date in respect of
claims relating to Taxation matters occurring or accruing prior to
the Closing Date; or
(ii) on or before the 2nd anniversary of the Closing Date in respect of
any other matters; or
(iii) on or before the expiration of the statute of limitation set forth
under the laws of the Federative Republic of Brazil, with respect to
the claims arising from breach of the Warranties set forth in
paragraphs 1, 2.1, 2.2 and 4.1 of the Schedule 1.
(B) With respect to claims to be brought against the Seller related to
third party claims filed against the Company or the Purchaser, the
liability of the Seller under this paragraph shall terminate (if the
claim has not been previously satisfied, settled or withdrawn) if
the Purchaser or the
50
Company has not commenced a legal proceeding against the Seller in
respect of a such claim within six months of the date on which an
unappealable award by a competent court or arbitration panel of
competent jurisdiction is issued with respect to such third party
claim, provided that the amount involved in such claim has already
been quantified. For this purpose proceedings shall not be deemed to
have been commenced unless they shall have been properly issued and
validly served upon the Seller.
2.3. Conduct of litigation
(A) Upon the Purchaser or the Company becoming aware of any claim,
action or demand against it or matter likely to give rise to any of
these in respect of the Warranties and Undertakings, the Purchaser
shall and shall procure that the Company shall:
(i) within seven (7) Business Days from the date any assessment or claim
made by a third party which may result in a claim under the
Warranties or Undertakings is notified to the Company or the
Purchaser, notify the Seller by written notice of such assessment or
claim. The failure to notify the Seller shall not relieve the Seller
of any liability that may have to the Purchaser, to the extent that
the Purchaser may prove that the defence of such claim, action or
demand by Seller has not been in any way harmed by the Purchaser's
or the Company's failure to give such notice to the Seller;
(ii) take such action and give such information and access to personnel,
premises, chattels, documents and records to the Seller and its
professional advisers as the Seller may reasonably request and the
Seller shall be entitled to require the Purchaser and/or the Company
to take such reasonable action and give such reasonable information
and assistance in order to avoid, dispute, resist, mitigate, settle,
compromise, defend or appeal any claim in respect thereof or
adjudication with respect thereto;
(iii) at the request of the Seller, allow the Seller to take the conduct
of such actions, as the Seller may deem appropriate in connection
with any such assessment or claim in the name of the Purchaser
and/or the Company and in that connection the Purchaser shall give
or cause to be given to the Seller all such assistance as the Seller
may reasonably require in avoiding, disputing, resisting, settling,
compromising, defending or appealing any such claim and shall
instruct such counsels or other professional advisers acceptable to
the Purchaser or the Company, as the Seller may nominate to act on
behalf of the Purchaser or the Company, as appropriate, but to act
in accordance with the Sellers
51
instructions. In this event the Seller shall pay all costs and
expenses in any way related to such action (including legal fees);
(iv) unless the Seller fails, upon being notified by the Purchaser, to
conduct the litigation relating to such claim or adjudication, make
no admission of liability, agreement, settlement or compromise with
any third party in relation to any such claim or adjudication
without the prior written consent of the Seller, such consent not
being unreasonably withheld; and
(v) take all reasonable action to mitigate any loss suffered by it
and/or the Company in respect of which a claim could be made under
the Warranties or the Undertakings.
(B) In any event, the Seller shall not be entitled at any stage to
settle any such third party assessment or claim without the prior
written consent of the Purchaser, such consent not being
unreasonably withheld.
2.4. No liability if loss is otherwise compensated for
Purchaser can only claim once
(A) The Purchaser and those deriving title from the Purchaser on or
after Completion shall not be entitled to recover damages or
otherwise obtain reimbursement or restitution more than once between
them in respect of any individual breach of the Warranties or claim
under the Undertakings.
(B) No liability shall attach to the Seller by reason of any breach of
the Warranties to the extent that the same loss occasioned to the
Purchaser or the Company by reason of such breach has been recovered
under the Undertakings and no liability shall attach to the Seller
under the Undertakings to the extent that the same loss has been
recovered by a claim under the Warranties given by it.
(C) The Seller shall not be liable for breach of any of the Warranties
nor under any of the Undertakings to the extent that the subject of
the claim has been or is made good or is otherwise compensated for
without any cost to the Purchaser or to the Company.
Insurances
(D) If, in respect of any matter which would give rise to a breach of
the Warranties or a claim under the Undertakings, the Purchaser
and/or the Company, as the case may be, is entitled to claim under
any policy of insurance, then except for any amount to be paid by
the
52
Purchaser or the Company to the relevant insurer that exceeds
R$100.000,00 (including, without limitation, deductibles and
eventual retrospective premium adjustments) (such amounts being
reimbursed by the Seller without the limitations set forth in this
Schedule 2, provided the Seller is notified about such claim within
60 days after the payment is made), no such matter shall be the
subject of a claim under the Warranties or the Undertakings unless
and until the Purchaser and/or the Company shall have made a claim
against its insurers and any such insurance claim (or any claim
which could have been made had such policies or their equivalents
been maintained as aforesaid) shall then reduce by the amount
recovered or extinguish any such claims for breach of the Warranties
or under the Undertakings.
Recovery from third parties
(E) If the Seller pays at any time to the Purchaser or the Company an
amount pursuant to a claim in respect of the Warranties and/or the
Undertakings or under any provisions of this Agreement and the
Purchaser or the Company subsequently become entitled to recover
from some other person any sum in respect of any matter giving rise
to such claim, the Purchaser shall assign to the Seller the Right
to, take all reasonably necessary steps to enforce such recovery,
provided, however, that the excess of the sum recovered by the
Seller from such other person less all costs, charges and expenses
incurred by the Seller and the amount paid by the Seller to the
Purchaser or the Company with respect to such claim, shall be
promptly paid to the Purchaser or the Company.
2.5. Acts of the Purchaser
(A) No claim shall lie against the Seller under the Warranties or
Undertakings to the extent that such claim is wholly or partly
attributable to any voluntary act, transaction or arrangement
carried out at the request of or with the consent of the Purchaser
before Completion.
(B) The Seller shall not be liable for any breach of Warranties or
claims under the Undertakings which would not have arisen but for
any reorganisation or change in ownership of the Shares after
Completion or any changes in the accounting basis on which the
Company values its assets or any other change in accounting policy.
2.6. Allowance, provision or reserve in the Reference Balance Sheet
53
No matter shall be the subject of a claim for breach of any of the Warranties or
under the Undertakings to the extent that allowance, provision or reserve in
respect of such matter shall have been made in the Reference Balance Sheet or
has been included in calculating creditors or deducted in calculating debtors in
the Reference Balance Sheet and (in the case of creditors or debtors) is
identified in the records of the Company or shall have been otherwise taken
account of or reflected in the Reference Balance Sheet.
2.7. Future legislation
No liability shall arise in respect of any breach of any of the Warranties or
under the Undertakings if and to the extent that liability for such breach
occurs or is increased as a result of any change after the date hereof of any
legislation, regulation, ordinance or ruling of any governmental, court or
regulatory authority or any interpretation of said authorities.
2.8. Taxation
No claim shall arise in respect of any breach of any of the Warranties or in
respect of the Undertakings to the extent that such claim would not have arisen
but for:
(1) any increase in rates of Tax or any change in law or practice or any
withdrawal of any extra-statutory concession by a tax authority or
any change in accountancy practice or principles, being an increase,
withdrawal or change made, in any such case, after the date of this
Agreement; or
(ii) any changes after Completion in the bases, methods or policies of
accounting of the Company, except to the extent that such changes
are necessary to comply with relevant laws and regulations that were
in force but were not complied by the Company before the Closing
Date ; or
(iii) a cessation of, or any change in the nature or conduct of, any trade
carried on by the Company being a cessation or change occurring on
or after Completion, except to the extent that such cessation or
change was caused by an act that occurred on or before Completion;
or
(iv) any differences between the bases, methods or policies of accounting
of the Purchaser or any member of the Purchasers group and those of
the Company, except to the extent that such bases, methods or
policies of accounting of the Company did not comply with the
relevant laws and regulations prior to the Effective Date.
2.9. Payment of claim to be reduction in purchase price
54
Any payment made by the Seller in respect of any claim under the Warranties or
under the Undertakings shall be deemed to be a reduction in the Purchase Price.
55
Schedule 3 - (Basic information about the Company)
1. Registered number CNPJ No.
65.828.550/0001-49
NIRE No.
▇▇.▇▇▇.▇▇▇.▇▇▇
2. Date of incorporation February 18th, 1991
3. Place of incorporation City of Campinas, State
of Sao Paulo
4. Address of registered City of Rio de Janeiro,
office Stte of Rio de Janeiro at
Av. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(▇▇▇▇).
5. Class of company S.A. (joing-stock company)
6. Authorised share capital Not applicable
7. Issued share capital R$ 116,608,534.10
8. Loan capital: Not applicable
9. Directors:
Full name Usual residential address Nationality
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇
Parente Caldas
▇▇▇▇▇▇▇ City of Rio de Janeiro, State of Rio
▇▇▇▇▇▇ ▇▇▇▇ de Janeiro, Brazilian
▇▇▇▇▇ ▇▇ Sernambetiba 2.930, Bl. 3, apt. 104,
Luiz ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ da Tijuca, City of Rio de Brazilian
▇▇▇▇▇▇▇▇ Janeiro, State of Rio de Janeiro
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇. ▇▇▇▇, Dutch
Constantijn City of Rio de Janeiro, State of Rio
Maljers de Janeiro.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of Rio de
Janeiro, State of Rio de Janeiro .]
10. Secretary:
Full Name: Usual residential address: Not applicable
Not applicable
11. Accounting reference date: December 31st
12. Auditors: Price Waterhouse
56
Coopers
13. Tax residence: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇. Business activities: The company's objectives
are to purchase, sell,
store, perform the
industrial activity of
bottling its bulk
products, as well as to
distribute, import,
export, transport,
including by means of
pipelines, mixing and
sale of liquefied gas and
other petroleum
by-products
(hydrocarbons); and other
related activities.
57
Schedule 4 - (intellectual Property) Part A
Reqistered trade and service marks
Class of goods
or services for Date of next
which renewal January
Country ▇▇▇▇ Number registered 10, 2009
-------- ---------- ---------- ------------------- ---------------------
Brazil PETROGAZ 006841708 20.35 January 10, ▇▇▇▇
▇▇▇▇▇▇ PETROGAZ 006841716 38.2040 January 10, 2009
Brazil PETROGAZ 811879011 04.10 August 26, ▇▇▇▇
▇▇▇▇▇▇ PETROGAZ 007146604 -- June 10, ▇▇▇▇
▇▇▇▇▇▇ PETROGAZ 811856313 04.10 July 15, ▇▇▇▇
▇▇▇▇▇▇ PETROGAZ 817067299 20.35 December 5, ▇▇▇▇
▇▇▇▇▇▇ PETROVIP 819241105 20.35 February 17, ▇▇▇▇
▇▇▇▇▇▇ PETROVIP 819241148 38.2040 January 26, 2009
Brazil TANKINHO 819241113 38.2040 January 26, 2009
PETROGAZ
Brazil TANKINHO 819241121 February 17, 2009
PETROGAZ 20.35
Brazil TANKINHO 819241130 February 17, 2009
PETROGAZ 0410
Brazil PETROGAZ 19087 Filed in
4 Paraguay in
July 29, 1999'
Brazil PETROGAZ 2273365 Filed in
Argentine in
4 January 13,
2000*
GASBEL 001988174 04.10 August 8, 2007
PAMPAGAS 821008722 -- June 26, 2011
Trade ▇▇▇▇ and service ▇▇▇▇ applications
Class of goods or
Date of services for which
Country ▇▇▇▇ Number application protection sought
---------- --------- ------------- -------------- ---------------------
Brazil PETROVIP 819241091 May 24, 1996 04.10
Description of Classes:
CLASSES DESCRIPTION
20.35 Receptacles, bags and packs in general.
58
38.20 Services transportation of goods, storage and packages of goods in
general.
38.40 Auxiliary services of transportation in general and storage.
04.10 Lubricant oil, grease and fuel in general.
40.15 Auxiliary services for the commerce of goods, including
importation and exportation.
Part B
Licences and user aqreements
The Trademark License Agreement
59
Schedule 5 (Disclosure Letter)
Schedule 6 (Agreed Form Trademark License Agreement)
SHELL BRASIL LTDA,
OXITENO NORDESTE S.A.
INDUSTRIA E COMERCIO
COMPANHIA ULTRAGAZ S.A.
and
SPGAS DISTRIBUIDORA DE GAS
S.A.
TRADEMARK SUB-LICENSE AGREEMENT
This TRADEMARK SUB-LICENSE AGREEMENT (the "Agreement") is made this 8th day of
August of 2003 among:
SHELL BRASIL LTDA., headquartered in offices located in the state of Rio de
Janeiro, in the city of Rio de Janeiro, on ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇ (▇▇▇▇▇ 101 to 701) and 6 (rooms 101 to 601) and enrolled with the
National Register of Legal Entities under the no. 33.453.598/0001-23
(hereinafter called "Licensor"),
OXITENO NORDESTE S.A. INDUSTRIA E COMERCIO, a Brazilian joint-stock company,
headquartered in offices located in the state of Sao Paulo, in the city of Sao
Paulo, on ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇, ▇(▇▇▇▇▇▇)▇▇▇▇▇, and enrolled
with the National Register of Legal Entities under the no. 14.109.664/0002-89
(hereinafter called the "New Controlling Shareholder"),
COMPANHIA ULTRAGAZ S.A., a Brazilian joint-stock company, headquartered in
offices located in the state of Sao Paulo, in the city of Sao Paulo, on ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇(▇▇▇▇▇▇)▇▇▇▇▇, and enrolled with the
National Register of Legal Entities under the no. 61.602.199/0001-12
(hereinafter called "Ultra"),
and
SPGAS DISTRIBUIDORA DE GAS S.A., a Brazilian joint-stock company, headquartered
in the state of Sao Paulo, in the city of Sao Paulo, on Av. Brigadeiro ▇▇▇▇
▇▇▇▇▇▇▇, no. 1343, 6(degree)andar, ala A (part), Bairro da Bela Vista, and
enrolled with the National Register of Legal Entities under the no.
65.828.550/0001-49 (hereinafter called "Licensee").
1
RECITALS
1. Shell International Petroleum Company Ltd. (hereinafter called "SIPC"), a
company of the Royal/Dutch Group, with registered office in England, is
the lawful owner of the Trade Marks (as hereinafter defined) listed in the
Schedule 1 and any copyright which exists in such Trade Marks, which are
currently being used by the Licensee or any of its Authorized
Sub-Licensees for the conduction of the Business, including in a quantity
of LPG Cylinders, bulk tanks and vehicles on which the Trade Marks are
printed and/or embossed or stamped, as well as in Licensee's plants,
depots, points of sales ("POS") and in its franchisees' sites;
2. SIPC has granted to Licensor the non-exclusive right in Brazil to use,
among others, the Trade Marks, under the Agreement entered by and between
them on the 17th day of December 1976 and further amendments (hereinafter
called "1976 License Agreement");
3. SIPC, under the 1976 License Agreement, item 1.(B), has also granted to
Licensor the right to grant to third parties, in terms not inconsistent
with the terms of such 1976 License Agreement. the right to use any of the
Trade Marks in Brazil subject to SIPC's prior approval;
4. Licensee is willing to use the Trade Marks in Brazil;
5. SIPC expressly agreed with the Trade Marks sub-license from Licensor to
Licensee under terms and conditions of this Agreement;
6. By means of a Share Purchase Agreement, all the Shares of Licensee were
transferred by Shell Petroleum NV (herein called the "Old Controlling
Shareholder") to the New Controlling Shareholder;
7. Due to such transfer of Shares, the New Controlling Shareholder paid to
the Old Controlling Shareholder the amount of R$107.865.000,00 (one
hundred and seven million, eight hundred sixty five thousand reais) (the
"Purchase Price");
8. As part of the consideration for the Purchase Price, besides the transfer
of the Shares to the New Controlling Shareholder, the Old Controlling
Shareholder and the New Controlling Shareholder have agreed in the Share
Purchase Agreement, with the express approval of SIPC, that each of the
Licensee and its Authorized Sub-Licensees should continue to display the
Trade Marks on any of its plants, depots, POS, franchisees' sites, LPG
Cylinders, bulk tanks or vehicles, as applicable, as existing on the
Closing Date and thereafter until such plants, depots, POS, franchisees'
sites, LPG
2
Cylinders, bulk tanks and vehicles can be re-branded or replaced and only
in accordance with the terms and conditions of this Agreement;
9. Licensor and Licensee intend that the use of the Trade Marks by each of
the Licensee and its Authorized Sub-Licensees in its plants, depots, POS,
franchisees' sites, LPG Cylinders, bulk tanks or vehicles, as applicable,
should be phased out in the time frame and in the form established in
Clause 4 to this Agreement;
IT IS AGREED AS FOLLOWS:
1. Definitions
Terms that are defined in the Share Purchase Agreement and are not defined
herein, shall have the meaning ascribed to them in the Share Purchase
Agreement. For the purposes of this Agreement the following expressions shall
have the following meanings:
(a) "Affiliate" in relation to Licensor shall mean N.V. Koninklijke
Nederlandsche Petroleum Maatschappij, a Netherlands company ("Royal Dutch"),
and The "Shell" Transport and Trading Company, p.l.c., an English company
("Shell T&T"), and any company other than Licensor which is at the time in
question directly or indirectly affiliated to either Royal Dutch or Shell T&T
or both of them. For this purpose and for the purposes of defining "Affiliate"
as to its applicability to the Licensee and its New Controlling Shareholder, a
particular company is (i) directly affiliated to a company or companies
beneficially owning shares carrying fifty percent (50%) or more of the votes
exercisable at a general meeting (or its equivalent) of the particular company;
and (ii) indirectly affiliated to a company or companies ("the parent company
or companies") if a series of companies can be specified, beginning with the
parent company or companies and ending with the particular company, so related
that each company of the series, except the parent company or companies, is
directly affiliated to one or more of the companies earlier in the series.
(b) "Assets" shall mean the LPG Cylinders, bulk tanks, vehicles, Licensee's
plants, depots, POS and franchisees' sites and any other asset, equipment or
material, which are used by the Licensee or any of its Authorized Sub-Licensees
for the conduction of the Business.
(c) "Authorized Sub-Licensed" shall have the meaning set forth in Clause 2 (1)
of this Agreement.
(d) "Big Foot Cylinders" shall mean a cylinder for the storage of LPG with 13
kg, with a larger base than the usual cylinders of 13 kg.
3
(e) "Business" shall mean the activities directly or indirectly performed by
the Licensee as of the date hereof, which can be summarized as: LPG
acquisition, LPG storing, LPG cylinder filling and distribution, packed and
bulk business.
(f) "Closing Date" shall mean August 8, 2003.
(g) "Embossed Trade Marks" shall mean Trade Marks which at the date hereof have
been embossed or permanently hard-stamped on LPG Cylinders or bulk tanks during
manufacture in such a way that they cannot be removed except by grinding.
(h) "Goods" shall mean LPG sold in LPG Cylinders or dispensed directly into
bulk tanks located on customers' premises.
(i) "LPG" shall mean liquefied petroleum gas.
(j) "LPG Cylinders" shall mean cylinders for the storage of LPG with 2 kg, 5
kg, 8 kg, 13 kg (including Big Foot Cylinders), 20 kg, 45 kg or 90 kg.
(k) "Share Purchase Agreement" shall mean the agreement between the Old
Controlling Shareholder and the New Controlling Shareholder relating to the
sale and purchase of all the Shares of Licensee.
(l) "Trade Marks" shall mean those trade marks registered by SIPC in Brazil
with the Brazilian Patent and Trademark Office--INPI and listed in the Schedule
1, together with any trade or business names, logos, used or displayed on or in
relation to any of the Assets that may suggest any connection with SIPC and/or
its Affiliates, including in particular the "Shell" name.
2. License
(1) Licensor hereby grants to Licensee for the term of this Agreement, a
non-exclusive royalty-free sub-license to use the Trade Marks in connection
with its Business in Brazil, without the right to grant sublicenses, except to
(i) its current franchisees, through the franchise agreements the Licensee is a
party to on this date (a list of such agreements is attached as Schedule 2
hereto), (ii) the owners of the current POS, through the so-called "Contratos
de Revenda de GLP e Cessao de Uso de Marca e Padroes e Outras Avencas" (a list
of such agreements is attached as Schedule 3 hereto), to which the Licensee is
a party to on this date, and (iii) the current carrier companies, through the
so-called "Contratos de Prestacao de Servicos de Transporte de Carga" (a list
of such agreements is attached as Schedule 4 hereto), to which the Licensee is
a party to on this date (together the "Authorized Sub-Licensees").
4
(2) It is expressly agreed that SIPC shall be the sole owner of the Trade
Marks. Licensee agrees to maintain quality in the operation of its Business
consistent with its current status.
(3) In consideration of the covenants in Clauses 3 and 4 below, no trade ▇▇▇▇
infringement action shall be taken against Licensee to prevent Licensee's use
of Assets bearing the Trade Marks in accordance with the terms of this
Agreement, for the specific periods set forth in Clause 4 to this Agreement.
3. Covenants
Each of the Licensee and the New Controlling Shareholder hereby covenants that
it shall not do anything that takes unfair advantage of, or is detrimental to,
the distinctive character or repute of the Trade Marks. In particular:
(a) Licensee shall, and shall take all reasonable commercial and/or legal
measures to cause the Authorized Sub-Licensees to use the Assets bearing the
Trade Marks in such a manner as it is currently used; and
(b) Licensee and the New Controlling Shareholder shall use, and shall take all
reasonable commercial and/or legal measures to cause the Authorized
Sub-Licensees to use, the Trade Marks (and the wording to accompany them) in
"Shell" branded sites in its current manner and context of use; and
(c) Licensee and the New Controlling Shareholder shall comply with the
provisions set forth in Clauses 5 and 6 of the Share Purchase Agreement; and
(d) Licensee shall not take any action that may lead anyone to believe,
including its customers, franchisees and POS, that Licensee is in any manner
Affiliated or Controlled by any company that is a part of the economic group of
SIPC and Licensor and shall make clear that the Trade Marks are owned by SIPC
by displaying the wording "Licensed by Shell International Petroleum Company
Limited to Companhia Ultragaz S.A." under the Trade Marks displayed in all
stickers that are affixed on the LPG Cylinders; and
(e) Licensee and its New Controlling Shareholder shall not seek to register as
a trade ▇▇▇▇, trading name, or company name any ▇▇▇▇ which is the same as or
bears any confusing resemblance to the Trade Marks; and
(f) Licensee and its New Controlling Shareholder shall not conduct the whole or
any part of their business under a corporate or business name which might
impair the validity, reputation or distinctiveness of any of the Trade Marks;
and
(g) Licensee shall use, and shall take all reasonable commercial and/ or legal
measures to cause the Authorized Sub-Licensees to use, the Trade Marks as
currently used; and
5
(h) Licensee shall not:
(i) apply any of the Trade Marks to new Assets; or
(ii) re-apply any of the Trade Marks to reconditioned or re-painted Assets; or
(iii) make any use of the Trade Marks in promotional or other literature or in
any other way to promote the sale of the Licensee's or its New Controlling
Shareholder's Goods.
4. Re-Branding Obligations
(1) The New Controlling Shareholder agrees that it shall, and shall cause the
Licensee to, and shall take all reasonable legal and/or commercial measures to
cause the Authorized Sub-Licensees to, as soon as reasonably practical after
the Closing Date and in any event within the timeframes established below,
cease in any manner whatsoever to use or display in connection with the
Business any of the Trade Marks (other than Embossed Trade Marks). Accordingly,
the New Controlling Shareholder shall, and shall cause the Licensee to, and
shall take all reasonable legal and/or commercial measures to cause the
Authorized Sub-Licensees to, remove or obliterate from the Assets, within the
timeframes and in the manners established below, all Trade Marks (other than
Embossed Trade Marks):
(a) Plants and Depots: Within 60 days from the Closing Date, the Licensee shall
remove or obliterate the Trade Marks being used therein by repainting the
places where they are located and removing or obliterating any plates and signs
showing such Trade Marks.
(b) POS: (i) Within the period starting 6 months from the Closing Date and
ending after the 24th month from the Closing Date, the Licensee shall terminate
all the so called "Contrato de Revenda de GLP e Cessao de Uso de Marca e
Padroes e Outras Avencas" entered into with each of the owners of POS; and (ii)
within 2 (two) years from the Closing Date, the Licensee shall either terminate
the relationship with all POS which currently operate under the Trade Marks but
with which the Licensee has not entered into a written agreement as of this
date (a list of such POS is attached hereto as Schedule 5) or enter into new
arrangements with such POS under the New Controlling Shareholder or other trade
▇▇▇▇.
(c) Franchisees' Sites: All the franchise agreements entered into with each of
the franchisees (i) which expire in less than 6 (six) months after the Closing
Date may, at the sole and exclusive discretion of the Licensee, be renewed for
an additional period of 6 (six) months, and (ii) which expire more than 6 (six)
months after the Closing Date shall not be renewed, and shall therefore be
terminated at the termination date of such agreement by notice sent by the
6
Licensee to each franchisee as set forth in each agreement. Notwithstanding the
above, at the sole and exclusive discretion of the Licensee, such agreements
may be terminated by the Licensee before its termination date. The Licensor
hereby acknowledges and agrees that, for both situations of items (i) and (ii)
above, the provisions of this Agreement, specially but not limited to, those
related to the sub-license of the Trade Marks to the Licensee, shall continue
to be valid and applicable until the termination date of the respective
franchise agreements. in order to allow the Licensee to comply with its
contractual obligations under the franchise agreements mentioned above.
(d) LPG Cylinders: Within 10 (ten) years from the Closing Date, the Licensee
shall remove and replace the Trade Marks from the removable components of the
LPG Cylinders. However, if the main body of the LPG Cylinder is stamped with an
Embossed Trade ▇▇▇▇, the Licensee shall use the LPG Cylinders for their total
useful life.
(e) Bulk Tanks Owned by the Licensee: Within 6 (six) months from the Closing
Date, the Licensee shall cause its customers to remove the Trade Marks being
displayed at the bulk tanks owned by the Licensee and located at their
premises. However, if the main body of the bulk tanks owned by the Licensee are
stamped with Embossed Trade Marks, the Licensee shall use such tanks for their
total useful life.
(f) Vehicles Owned by the Licensee: Within 3 (three) months from the Closing
Date, the Licensee shall remove or obliterate the Trade Marks, and any colour
displays that are part of the Shell visual manifestation, being displayed at
any of its vehicles.
(g) Vehicles Owned by third parties: Within 3 (three) months from the Closing
Date, the Licensee shall take all reasonable legal and/ or commercial measures
to cause the carrier companies parties to the so called "Contratos de Prestacao
de Servicos de Transporte de Carga" entered into with the Licensee to remove or
obliterate the Trade Marks being displayed on their vehicles.
(h) Stationary and other documentation: Since the Closing Date, the Licensee
shall not print any new invoice, letterhead papers and other documents
displaying the Trade Marks and within 1 (one) month from the Closing Date, the
Licensee shall ▇▇▇▇ with a stamp over the Trade Marks contained in the existing
printed and not used invoices the new trademarked or corporate name adopted by
Licensee.
(2) The New Controlling Shareholder shall give Licensor reasonable access to
Licensee's properties and premises, and shall require the Authorized
Sub-Licensees to give reasonable access to their properties and premises, upon
reasonable notice from Licensor during the timeframes specified above and for
7
three (3) months following the expiry of each specific period established above
to check whether or not they have complied with this Clause 4.
(3) The New Controlling Shareholder and the Licensee shall keep the Licensor
and any of its Affiliates harmless and indemnified for the cost of all such
re-branding activity.
5. Ownership and Use
Nothing in this Agreement shall be construed as granting Licensee or the New
Controlling Shareholder any proprietary rights in any of the Trade Marks and
any goodwill arising out of the presence of the Trade Marks on the Assets shall
accrue to Licensor.
6. Infringement
(1) Immediately upon becoming aware of:
(a) any infringement or suspected infringement of any of the Trade Marks by a
third party; or
(b) any application for the registration of a trade ▇▇▇▇ which Licensee or the
New Controlling Shareholder believes should be opposed because of its
similarity to a Trade ▇▇▇▇; or
(c) any matter or circumstance of whatsoever nature which in the opinion of
Licensee or the New Controlling Shareholder might affect the interests of
Licensor under this Agreement, the New Controlling Shareholder shall
immediately notify Licensor thereof but the New Controlling Shareholder or the
Licensee shall not institute any action or proceeding for infringement,
opposition or otherwise or take any other steps for the protection of the Trade
Marks unless requested or agreed to in writing by Licensor.
(2) If Licensor desires to institute any action or proceeding or take any other
step for the protection of the Trade Marks, then Licensee shall, if reasonably
requested by Licensor in writing and in order to allow Licensor to protect the
Trade Marks, join Licensor in any such action or proceeding or step, at the
sole and exclusive expense of the Licensor.
7. Costs
The costs of maintaining the Trade Marks registration shall be borne by
Licensor.
8
8. Liability and Indemnity
(1) Licensor shall not be liable to Licensee or the New Controlling Shareholder
for any loss or damage suffered by Licensee or the New Controlling Shareholder
as a result of or in connection with Licensee's conduct of its business and the
display in connection therewith of the Trade Marks. Licensor makes no
representations and gives no warranties under this Agreement as to the
non-infringement of third party rights or otherwise, and all implied warranties
are hereby excluded.
(2) Licensee and the New Controlling Shareholder shall each fully defend,
indemnify and hold Licensor and its Affiliates harmless against any and all
claims, demands, losses or costs (including reasonable legal costs) which
Licensor and its Affiliates may receive, suffer or incur at the instance of any
third party arising out of or in connection with any display, representation,
misrepresentation, use or misuse or any other handling whatsoever made after
the Closing Date by the Licensee of the Trade Marks on the Assets or otherwise
in connection with the Business, without set-off counterclaim or any other
deduction of any nature and regardless of whether or not the New Controlling
Shareholder or the Licensee has complied with its obligations under this
Agreement. This obligation of the Licensee shall not apply in those claims,
demands, losses or costs (including legal costs) where such claims, demands,
losses or costs (including legal costs) originated as a result of actions or
omissions of the Licensor or the Licensee prior to the Closing Date. For the
avoidance of doubt, this indemnity shall not extend to any claim by a third
party if and to the extent that such claim challenges the validity or ownership
of the Trade Marks
(3) Licensor shall fully defend, indemnify and hold Licensee and its Affiliates
harmless against any and all claims, (including, without limitation, claims
that challenges the validity or ownership of the Trade Marks), demands, losses
or costs (including reasonable legal costs) which Licensee and its Affiliates
may receive, suffer or incur at the instance of any third party arising out of
or in connection with any display or use made before the Closing Date by the
Licensee of the Trade Marks on the Assets, without set-off counterclaim or any
other deduction of any nature.
9. Term of Agreement
(1) The provisions of this Agreement shall come into force on its signature
date and shall remain in force until the expiry of the longest period referred
to in Clause 4 above, unless terminated sooner in accordance with the
provisions of this Agreement.
(2) Licensor may by written notice to Licensee and the New Controlling
Shareholder terminate the provisions of this Agreement with immediate effect
if:
9
(a) Licensee or the New Controlling Shareholder commits a breach of any of the
conditions or covenants of this Agreement and fails to rectify the breach
within 30 (thirty) days of receiving notification of the breach from Licensor,
or
(b) Licensee or the New Controlling Shareholder challenges the validity of the
Trade Marks or Licensor's right to sub-license the Trade Marks, or
(c) Licensee or the New Controlling Shareholder goes into bankruptcy or
concordata.
(3) Upon termination or expiry of this Agreement, Licensee and the New
Controlling Shareholder shall not use or assist others to use any of the Trade
Marks or any other ▇▇▇▇ or manifestation which might be confused with the Trade
Marks, or which might be regarded as a copy or imitation of the Trade Marks, in
relation to any goods, services or activity or as a business or corporate name
(or as part of a business or corporate name).
(4) The provisions of Clauses 8, 9(3) and 12 of this Agreement shall survive
its expiry or termination for whatever reason.
(5) Upon termination or expiry of the provisions of Clause 4 of this Agreement,
Licensee shall cease the use of the Trade Marks and promptly remove all
references to the Trade Marks from the Assets and, in relation to the Assets
where such prompt removal is not practicable, cease to use such Assets until
references to the Trade Marks have been removed from such Assets.
10. Penalties
Any breach by the Licensee or the New Controlling Shareholder of any provision
of this Agreement, including but not limited to the re-branding provisions set
forth in Clause 4 above, will result in the imposition of a daily penalty in
the amount of R$50.000,00 (fifty thousand reais) if such default is not cured
within 30 days of such breach (except from the obligations set forth in Clauses
4 (1) (a), (f) and (h), to which such 30 days cure period shall not apply),
without prejudice to any other remedies available to the Licensor. The amounts
due to the Licensor under this Clause shall be adjusted by IPC-A from the
Closing Date until the respective payment date.
11. Assignment and Sub-Licensing
(1) Licensor shall be free to assign the trade Marks and/or its rights and
obligations under this Agreement as it shall see fit, subject to the rights of
Licensee hereunder.
(2) Licensee and the New Controlling Shareholder shall not in any circumstances
assign or transfer its rights or obligations under this Agreement and
10
shall not sub-license its rights nor sell or transfer any of the plants.
depots, LPG Cylinders, bulk tanks or vehicles still bearing the Trade Marks to
any third party, except (a) for the sublicenses granted by Licensee to (i) its
franchisees, through the franchise agreements the Licensee is a party to on
this date, (ii) the owners of the POS, through the so-called "Contratos de
Revenda de GLP e Cessao de Uso de Marca e Padroes e Outras Avencas" the
Licensee is a party to on this date, (iii) the carrier companies, through the
so-called "Contratos de Prestavdo de Servicos de Transporte de Carga" the
Licensee is a party to on this date or (b) after 2 (two) years after the
Closing Date, for any assignee, in case the New Controlling Shareholder
transfers the shares of the capital stock of the Licensee to any third party,
or (c) for its Affiliates.
12. Notices
All notices to be sent by one party to the other pursuant to this Agreement
shall be sent to that other party at its address given at the beginning of this
Agreement. Any party may at any time designate in writing to the other party a
different or additional address to which notices and other communications are
subsequently to be sent.
13. Applicability of and Conflict with 1976 License Agreement
The 1976 License Agreement shall apply to the relationship hereunder between
the parties subsidiarily and where not contrary to the provisions of this
Agreement. In case of conflict between the statements of the two contracts, the
provisions of this Agreement shall prevail over the 1976 License Agreement.
14. Applicable Law and Jurisdiction
This Agreement and the relationship hereunder between the parties and any
dispute arising from or in connection with it shall be exclusively interpreted
in accordance with and governed by the Brazilian law and the courts of the City
of Rio de Janeiro. State of Rio de Janeiro shall have exclusive jurisdiction to
deal with any such dispute.
15. Intervening Party
Ultra signs this Agreement as an intervening party, acknowledging all its terms
and conditions and as a legal successor of the New Controlling Shareholder in
all its rights and obligations hereunder, as from the date the Shares are
transferred from New Controlling Shareholder to Ultra (or to any other third
party) up to the date such rights and obligations cease to exist.
16. Language
11
This Agreement is entered into both English and Portuguese versions. In case of
any conflict between them, the English version shall prevail.
12
AS WITNESS WHEREOF the parties have executed this Agreement in (4) four original
counterparts of identical form and content, to one sole effect, in the presence
of the two undersigned witnesses:
Rio de Janeiro, August 08, 2003.
SHELL BRASIL LTDA.
By:
Title:
COMPANHIA ULTRAGAZ S.A.
By:
Title:
OXITENO NORDESTE S.A.
INDUSTRIA E COMERCIO
By:
Title:
SPGAS DISTRIBUIDORA DE GAS
S.A.
By:
Title:
Witnesses:
1)
Name:
Id#:
2)
Name:
13
Id#:
14
SCHEDULE 1
----------
Trademarks To Be Licensed
-------------------------
Trade ▇▇▇▇ ▇▇▇▇. No. Date of Registration Class
---------- --------- -------------------- -----
[GRAPHIC] 819869678 August 10, 1999 40.15
SCHEDULE 2
----------
This Schedule 2 shall be deemed to include any other franchisee of the Licensee
who provenly has directly or indirectly, been a franchisee of the Licensee on
or before the Closing Date.
List of Franchisees
-------------------
(see attachment)
16
SCHEDULE 4
----------
This Schedule 4 shall be deemed to include all agreements so called "Contratos
de Prestacao de Servicos de Transporte de Carga" entered into by the Licensee
which have provenly been directly or indirectly entered on or before the
Closing Date.
List of the so-called "Contratos de Prestacao de Servicos de Transporte de
Carga"
(see attachment)
17
Schedule 7 (List of Secondees)
------------------------------
1. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
3. ▇▇▇▇▇▇ ▇▇▇▇▇▇
4. ▇▇▇▇▇▇▇▇ Sumnienski
5. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
6. ▇▇▇▇ ▇▇▇▇▇▇▇▇
7. ▇▇▇▇▇▇ Spadon
8. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9. ▇▇▇▇▇▇ ▇▇▇▇▇
10. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
11. ▇▇▇▇▇▇ ▇▇▇▇▇▇
12. ▇▇▇▇▇▇ ▇▇▇▇▇
13. ▇▇▇▇▇▇ ▇▇▇▇▇▇
18
Schedule 8 (List of agreements for the rendering of services to the Company to
------------------------------------------------------------------------------
be terminated)
--------------
1. Service Agreement entered into by and between Shell Brasil and Petrogaz
dated as of June 1, 2000.
2. Direct Dealing GI Services Contract entered into by and between Shell
Information Technology International B.V. and the Company dated as of
March 18, 2003.
3. Service Agreement entered into by and between Shell International
Petroleum Company Limited and the Company December 3, 2001.
19
Schedule 9 (Reference Balance Sheet)
------------------------------------
20
Schedule 10 (List of matter not subject to standard limitation on quantum)
--------------------------------------------------------------------------
21