PARTICULAR INSTRUMENT OF PURCHASE AND SALE AND OTHER AGREEMENTS
PARTICULAR
INSTRUMENT OF PURCHASE AND SALE AND OTHER AGREEMENTS
By
the
present particular instrument, the parts, on a side,
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IBR
INDÚSTRIA BRASILEIRA DE RESINAS LTDA.,
society limited, head office at Via da Penetração IV, Area of Light and
Medium Industries, ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
of ▇▇▇▇▇▇ Filho, State of Bahia, registered at CNPJ under nr.
02.392,616/0001-80, in this act represented in the form of yours
social
contract by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMA, below qualified
("IBR")
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▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMA,
Brazilian, single, company’s administrator, ID nr. 05.350.515-08 SSP/BA,
registered at CPF/MF under the nr. ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled
at the Lake ▇▇▇▇▇▇▇ Street, house 210, in the city of ▇▇▇▇▇▇▇▇-▇▇,
ZIP
CODE 41.810-120.
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▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMA,
Brazilian, single, entrepreneur, ID nr. 09.462.794-03 SSP/BA, registered
at CPF/MF under the nr. 809-566.965-20, resident and domiciled at
the Lake
▇▇▇▇▇▇▇ Street, house 210, in ▇▇▇▇▇▇▇▇-▇▇ city, ZIP CODE 41.810-120,
in
this act represented by HILTON
▇▇▇▇▇▇ LIMA, Brazilian,
married, entrepreneur, ID nr. 958.630-01 SSP/BA, registered at CPF/MF
under the nr. ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled at the Lake
▇▇▇▇▇▇▇
Street, house 210, in the city of ▇▇▇▇▇▇▇▇-▇▇, ZIP CODE 41.810-120,
in the
terms of the granted letter of attorney in
March, 3rd, 2005, wrought by
the Registry Office of the First Office of Notes of the District
of
Cachoeira - Bahia, in the book 089, sheet 082; and
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HBL
PARTICIPAÇÕES E EMPREENDIMENTOS LTDA.,
society limited with head office at the Alfazema Street, nr. 761,
Ed.
Iguatemi Business & FI, Room 501, Caminho das Árvores, ZIP CODE:
41.820-710, municipal district of Salvador, State of Bahia, registered
at
CNPJ under nr. 07.758.920/0001-12, in this act represented in the
form of
it social contract by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMA, above
qualified.
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(HILTON
▇▇▇▇▇▇▇ LIMA, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMA and HBL PARTICIPAÇÕES E EMPREENDIMENTOS LTDA.,
henceforth designated, together, Shareholders, individually,
Shareholder)
(Shareholders
and IBR henceforth designated simply, together, SALESPERSONS and, separately,
SALESPERSON)
and,
by
other side
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COMANCHE
DO BRASIL PARTICIPAÇÕES LTDA.,
society limited entrepreneur, with headquarter in the capital of
the State
of Sao Paulo, in the Alameda Campinas, 463, 7° floor, registered at CNPJ
under the nr. 07.751.535/0001-43, in this instrument represented
by its
Director, Mr. Ivo Tolesano Júnior, Brazilian, married, company’s
administrator, ID no. 5.255.932 SSP/SP, registered at CPF/MF under
the nr.
▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled in the capital of the State
of Sao
Paulo, at the Funchal street, nr. 375, 8th floor, room 81, henceforth
simply designated BUYER;
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(SALESPERSONS
and BUYER designated, together, as Parts and, individually, as
Part)
PRELIMINARY
CONSIDERATIONS
CONSIDERING
THAT:
I. IBR
is
the owner or holder of rights active, immobile, equipments, contracts, and
other
goods related to the production activity, storage and biodiesel transport,
described and characterized in the form no exhausting in the Annex
A
to the
present, and it can become, between this date and the Closing Date, owner or
holder of new contracts or assets related to the biodiesel production (the
"Assets", and such activity "Business of Biodiesel").
II. SHAREHOLDERS
are titular and legitimate proprietors of the totality of the representative
shares of 100% (a hundred percent) of the social capital of IBR, shares these
free from any onus, obligations, duties, responsibilities or disputes before
third parties (the "Shares").
III. Observed
the established conditions in the present instrument, the BUYER wants to acquire
from the Shareholders the Shares or the Assets, and the Shareholders want to
alienate them.
THE
PARTS
DECIDE to celebrate the present Particular Instrument of Purchase and Sale
and
Other Agreements ("Contract”) which will regulate the acquisition by the BUYER
of the Shares or the Assets from the Shareholders, according to the terms and
conditions below:
SECTION
ONE
INTEGRAL
AGREEMENT
1.1 The
Parts
agree by this Contract that the established obligations in any documents or
previous understandings, be in writing or verbally, that the Parts or any part
related to them have negotiated in relation to the Assets and to the Shares
were
properly accomplished in this date, and the terms and conditions here foreseen
substitute all and any previous agreement signed by the Parts or by parts
related to them.
SECTION
TWO
CLOSING
2.1 In
the
date that all the Closing Conditions are accomplished, as defined in the Section
Four below, (“Closing Date”), in agreement with the terms and conditions of the
present Contract, and by the payment of the price stipulated in the Clause
3.2
below:
(A) In
case
the willing condition of the Clause 2.2 (i) below has been satisfied, the BUYER
will acquire from the Shareholders the Shares; or
(B) In
case
the condition foreseen in the Clause 2.2 (i) has not been satisfied, but the
conditions foreseen in the clauses 2.2 (ii) and 2.3 have been satisfied, the
BUYER will acquire from the SHAREHOLDERS the Assets.
2.2 For
the
purpose of the acquisition modalities determination of the BUYER foreseen in
the
Clause 2.1 above, the Parts agree with the following conditions to be
satisfied:
(i)
For
the
BUYER accomplish the Shares acquisition, is indispensable the realization of
an
accounting auditing in IBR in agreement with the accounting principles accepted
usually in Brazil, satisfactory to the BUYER and charged to him.
For
the
purposes of the accounting auditing the Shareholders commit to cooperate and
to
undertake the best efforts, making available all of the information and
necessary documents for the referred accounting auditing in the smallest
possible period.
(ii)
In
the
case that the PARTS and the BUYER contracted auditing company understand that
is
not probable that the auditing became concluded without important exceptions,
or
case the PARTS make a mistake in this agreement and the auditing became not
conclude without important exceptions, the Shareholders should go along to
all
the acts necessaries to effect of a efficient and valid form a reduction of
the
IBR share capital, by the payment and distribution “in natura” to the
Shareholders of the Assets totality.
2.3 In
the
Closing Date, SALESPERSONS and BUYERS should realize the Assets or the Shares
transfer, according to the case, by the practice of all the necessaries acts
for
the effective operation here contemplated, as, for example, the celebration
of
the public deed of purchase and sale of the immobile and the instrument of
alteration of the IBR Social Contract, observed the disposition of the item
3.2
(i) below.
SECTION
THREE
ACQUISITION
PRICE AND PAYMENT OF THE ACQUISITION PRICE
3.1
In
the
Closing Date, and since that the Closing Conditions foreseen in the Section
Four
below have been integrally satisfied, the BUYER, or who designated by him,
will
pay to the SALESPERSONS, as price by the Shares or Assets, depending of the
case, the sum or the values defined in the clause 3.2 below (“Acquisition
Price”), in the way and conditions established in the next clauses.
3.2 The
BUYER
will pay to the Shareholders or to IBR, by the acquisition of the Shares or
the
Assets, as the acquisition modality establish in the terms of the Clause 2.1
above, (i) R$ 20,000,000.00 (twenty million of Real), case occur the acquisition
of the Shares, assuming too the Buyer the Refis Debt, as defined in the follow
item (i) which, in any case, will be superior to R$ 2,100,000.00 (two million
and one hundred thousand real), OR (ii) R$ 22,100,000.00 (twenty two million
and
one hundred thousand real), case occur the acquisition of the Assets, as
eventually adjusted, to be paid as follow and in the following conditions:
(i) in
the
Closing Date and by formalization of the necessary acts for the transfer of
the
Shares or the Assets, according to the case, (a)
in
occurring the acquisition of the Shares, the IBR will continue responsible
by
the payment of the IBR debt due to the adhesion to the program of exceptional
parceling of fiscal tax debts, foreseen in the Provisory Act nr. 303, of June
29th, 2006, by which IBR committed to pay all the open fiscal debts until then
in 120 (hundred and twenty) parcels, of maximum value, R$ 2,100,000.00 (two
million and a hundred thousand real) (“Refis Debt”), OR, (b)
occurring the Assets acquisition, R$ 2,100,000.00 (two million and one hundred
thousand real) will be paid by the BUYER to the SALESPERSONS;
(ii) The
value
of R$ 20,000,000.00 (twenty million real), being (a)
R$
12,500,000.00 (twelve million and five hundred thousand real) in cash, in the
Closing Date, eventually adjusted in the terms of the Clauses 3.3 and 7.3,
and
against the signature and deliver of the final documents formalizing the Shares
and Assets transfer, depending of the case; (b)
R$
5,000,000.00 (five million real), which will deposit in a joined account of
deposit in warranty (the “Investment Warranty Account”), to be moved jointly
among the Parts, in the Closing Date, and will be released to the SALESPERSONS
for the accomplish of the obligations foreseen in the Clause 4.1 (g); and
(c)
R$
2,500,000.00 (two million and five hundred thousand real), which will be
deposited in a joined account of warranty deposit (the “Final Payment Warranty
Account”) in the Closing Date, and will be released to the SALESPERSONS in
January 31st,
2008,
since that the Declarations and Warranties (as defined in the Clause Fifth)
are
still valid, corrects and true, as declared and warranted in the Closing Date.
3.3 If
in the
Closing Date be refined any debt, contingency or passive of IBR different from
the Debt Refis, the BUYER, with consent of the SALESPERSONS, will pay such
debt,
contingency, inadequacy active or liabilities supervenience, by the reduction
of
the Acquisition Price in equivalent amount. In case any of the debts,
contingency or liabilities cannot be paid off in advance, the respective debts,
contingency or liabilities will be assumed by the BUYER.
3.4 In
the
closing date, in the case of no assumption of the liabilities, debts or
contingency of IBR by the Buyer, in the form of the clause 3.3, the
Shareholders, in the case of sale of the Shares, or the IBR, in the case of
the
sale of the assets, had(have) been sponsor(s) for the payment of the debts
discriminated in the item "bills to pay" of its patrimonial balance, and
it(they) will stay holder(s) of the credits described in the item "bills to
receive" of its patrimonial balance, as well as of the integrated goods of
the
stock in the Closing date. The IBR debts, credits and stock, in the Closing
Date
will be determined for the patrimonial balance especially for
this objective in the Closing date.
3.5 The
Shareholders, the IBR and the BUYER recognize and accept, observed the allowed
in law, that they will adopt and to use the values indeed allocated to each
assets or class of assets, in all of the declarations or demonstrations of
taxes
federal, state or of another applicable instance, abstaining from adopting
any
voluntarily position inconsistent in that sense, when proceeding to the
preparation of such declarations or demonstrations of taxes, in restitution
forms or, still, in any action or process that come to be
established regarding
mentioned declarations or demonstrations of Taxes. In spite of any opposite
disposition contained in the present Instrument, the commitment foreseen above
will subsist to the Closing Date, in a restricted form the legal responsibility
and for period of the legal prescription of the respective obligations.
3.6 The
Parts
will negotiate in good faith and inside of the legal limits a tax planning
that
shown itself less onerous for the accomplishment of the payment of the
Acquisition Price.
SECTION
FOUR
CONDITIONS
SUSPENSIVE AND/OR RESOLUTIVES
4.1 The
Parts
in this act agree that, as precedent condition to the consummation of the
operation here contemplated and for the effective alienation of the Shares
or
Assets, according to the case, in the terms of this Contract, by the payment
of
the Acquisition Price, the conditions listed proceed (the "Closing Conditions"),
must have been fully satisfied, to be in total effect and they be satisfactory
to the BUYER, or totally or partially resigned by an exclusive criteria of
the
BUYER:
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Declarations
and Warranties.
The declarations and warranties rendered by the SALESPERSONS, as
established in the Section Five below (the "Declarations
and Warranties")
should be correct and complete and should continue valid at the Closing
Date, having the BUYER received the documents and enough information
evidencing, for the BUYER'S satisfaction, that referred Declarations
and
Warranties are complete and validate.
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| b) |
Auditing
and Technical Opinions.
The auditing legal, financial and accounting, besides the technical
opinion, established in the Section Six should be satisfactory to
the
BUYER and should be enough to allow the accounting auditor to approve
the
consolidation of the Shares or the Assets in the Buyer's Patrimonial
Balance, in agreement with the accounting principles usually accepted
in
the United States of America ("US
GAAP")
without any safeguard, and should be delivered by the SALESPERSONS
the
documents to are necessary to the realization of referred auditing,
such
as certificates, instruments, negative certificates, reports and
other, as
well as for the confirmation of the Assets Capacity, according to
definition of the clause 5.1 (g), confirming that this will be attested
by
verification made by independent engineering company, with recognized
and
well-known capacity in the segment of its actuation, indicated by
the
BUYER and accept by the SALESPERSONS, which acceptance will not be
refused
without a reasonable justification.
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| c) |
Licenses
and Registrations.
The confirmation that the BUYER, as a consequence of the acquisition
of
the Shares or Assets, according to the case, possesses all the
installation licenses and/or operation licenses, State Registration,
register in the National Agency of Petroleum and all the others required
by the legislation and regulation in effect to permit it to exercise
the
activity of Industrialization and processing of vegetable oils and
animal
fat for the production, storage and biodiesel commercialization and
its
derived. Such confirmation will be certified by a technical report
of
specialized independent company, with a recognized and well-known
capacity
in the segment of its actuation.
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| d) |
Fiscal
Benefits.
The confirmation that the BUYER pled the extension for the Business
of
Biodiesel of the fiscal benefit granted already for IBR by the Decree
4.213, of April 06th,
2002, as well as that can count with whole the help of the SALESPERSONS
with the objective of contribute for the BUYER to enjoy of the State
fiscal benefits that are available for the respective activity, in
agreement with the applicable public politics to the fiscal sphere
in the
state and federal field of action.
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| e) |
Strange
activities to the Business of Biodiesel.
In case of acquisition of the Shares, it is necessary that have a
separation of the relative assets to the strange activities to the
Business of Biodiesel (which don't include the Assets) for another
company
indicated by the SALESPERSONS, taking them the responsibility for
the
total Independence of these activities and eventual passive
and
contingencies from them; or in case of purchase of the Assets, they
should
be transferred free of any link with stranger activities to the Biodiesel
Business, being that the SALESPERSONS became responsible by the total
independence of these activities and eventual liabilities and
contingencies generated by them.
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| f) |
Supply
of raw material of Third Parties.
That evidences of the raw material readiness exist for the BUYERS
for
biodiesel production in an annual minimum volume of 20,000,000 (twenty
million) of liters for a minimum period of 3 years, and that the
SALESPERSONS are endeavoring the best efforts in the sense of celebrating
contracts for the acquisition of raw material.
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| g) |
Supply
of Raw material by the Shareholders. That
Shareholders invest the Portion of the Acquisition Price foreseen
in the
Clause 3,2 (ii) (b) in the acquisition of immobile rural and investment
in
planting of oleaginous for raw material of biodiesel production.
The raw
material produced by the SALESPERSONS will be supplied to the BUYER
in
exclusiveness regime for a period of 10 years; as the contract to
be
firmed between the parts, whose terms and conditions will be agreed
between the Parts until the Closing Date.
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| h) |
Plan
of Industrial Expansion. That
exists a plan of expansion of IBR or of the Assets, with budgets
of the
potential suppliers, to reach the capacity of production of 100.000.000
(a
hundred million) of liters a year.
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| i) |
Technical
Advisor. That
Shareholders commit to accompany the process biodiesel production
for a
minimum period of 3 months after the Closing Date, supplying, with
exclusiveness, the necessary technical support and verifying the
biodiesel
production starting from the certain specifications by the sector
regulators Governmental Agencies, in a contract whose terms and conditions
will be agree between the Parts until the Closing Date.
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| j) |
Acts
and Additional Documents. The
practice of acts and the celebration of all of the additional documents
that come to be necessary for the consummation of the operation here
contemplated.
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| k) |
Period
Limit. The
totality of the Closing Conditions must have been attended in a period
equal or less than 120 (hundred and twenty) days to count of the
present
dates or in any subsequent date that the BUYER comes to accept, at
it
exclusive criteria (the “Closing
Limit Date").
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SECTION
FIVE
DECLARATIONS
AND WARRANTIES
5.1 THE
SALESPERSONS render each one, individual, solidary and unlimitedly, the
following Declarations and Warranties, which should be true and correct in
the
Closing Date:
| a) |
Of
the Non Violation. The
consummation of the operation here contemplated won't constitute
or it
will result in the violation of any term, condition or disposition,
nor
will it constitute breach of contract of the terms, nor it will result
in
the creation of any gravamen, obligation or onus on the Shares, and/or
on
the Assets, in agreement with any contract or other instrument that
any of
the SALESPERSONS are part or interested party. That consummation
either
will violate any law, regulation, sentence, instruction or judicial
order
that force the SALESPERSONS as well as it won't result in the loss
of any
license, certificate, local approval or local right that the SALESPERSONS,
the IBR or the Assets have or come to have, nor they will commit
the
Assets Capacity, according to definition of the clause 5.1
(g).
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| b) |
Observance
to the Laws. The
operations and activities of the SALESPERSONS relatively to the IBR
and to
the Assets don't violate any determinations or applicable laws of
any
government organ, nor the SALESPERSONS received any warning or
notification that such violations went or could come to be them imputed.
They are not in course or, except for better judgment of the SALESPERSONS,
they are imminent any investigations or analyses by any Government
Organ,
involving the SALESPERSONS or the Assets, nor the SALESPERSONS received
any warning or notification about the intention of governmental organ
to
proceed at this way.
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| c) |
Member
Constitution of IBR. IBR
is a limited society properly constituted and existent validly and
in
regular situation, having full powers and the member’s authorization to
drive their businesses as it makes actually and to possess the properties
and the goods that now possesses.
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| d) |
IBR
Social Capital and Shares. The
IBR social capital is, in this date, of R$ 2,033,622.00 (two million,
thirty three thousand, six hundred and twenty-two real) and it is
divided
and acted by the Shares, which were completed by the Shareholders,
all of
the Shares are free and disencumbered of any gravamen, pledge, onus
and
warranty and rights of any nature. The Shareholders didn't check,
nor
options exist, rights preferably, pledge or other similar rights,
pledge
or other relative similar rights to the Shares. There is none lawsuit,
administrative process or other fact or circumstance that it could
obstruct or interfere in the transfer of the Shares in the terms
of the
present Contract.
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| e) |
Constitution,
Power and Authorization, The
SALESPERSONS have full powers to celebrate this Contract, to accomplish
their obligations now assumed and to consummate the operations
contemplated in the present Contract, having been taken all the necessary
measures to the authorization and consummation of the operation object
of
this Contract, not being necessary, therefore, that be take additional
measures to occur the signature and the formalization of that
Contract
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| f) |
Ownership
of the Assets.
The IBR or the Shareholders, as the case, is (they are) ownership,
legitimate landlady and possessor of assets that, in, group, be enough
to
react, in solid way with the economical expectations, at least, 40,000
tons of biodiesel a year, among them the assets described in the
Annex A,
being that the necessary equipments for stockpiling don't assist
that
production, becoming necessary for that be realized investments,
which
ones are and that they are in perfect conditions of use and free
and
unimpeded of any gravamen, pledge, onus and warranty and rights of
any
nature, the IBR and/or Shareholders were not celebrated any contract
or
agreement that has for object the Assets or the pledge constitution
or
other relative similar rights to the same
ones.
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| g) |
Capacity
of the Assets. The
necessary IBR Assets for the operation of the biodiesel businesses
are
physically located inside of the immobile goods that compose the
Assets
and that are capable to operate in way efficient, reliable, continuous
and
in solid way with the economical expectations, for to industrialize,
at
least, 130,000 liters of biodiesel a day, with base in a year of
300 days,
(the "Assets Capacity"), (except necessary equipments for stockpiling)
having been administered and operated in its normal course of business
by
the IBR employees.
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| h) |
Obligations
of the Salespersons. The
SALESPERSONS, together or individually: (i) don't possess any obligation
or responsibility, wants incurred, contingent or of any other nature,
besides obligations civil, commercial, fiscal, environmental, labor
or
related to Social Security that can affect the respective ownership
rights
on the Shares and the Assets and they didn't assume any obligation
or
responsibility involving the Shares and the Assets; (ii) they are
not
parts, nor they are subject to, any litigation, judicial or administrative
proceeding, in any instance that can affect the Shares and the Assets;
and
(iii) they are not guarantors, bondsmen or of other form warrantor
of any
obligations nor they are parts of any contract by force of which
they
assume any obligation to honor that of some form can compromise the
Shares
and the Assets.
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| i) |
Normal
Course of Operation. The
IBR and the Assets will be administered and operated between the
present
date and the Closing Date in their respective normal courses of
businesses, being right that SALESPERSONS do not acquired new debts,
that
not in you debts strictly related and necessary to the business of
the IBR
and the legal readjustments of the Debts of IBR.
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| j) |
No
distribution of assets or resources.
Between the present date and the Closing Date, the IBR didn't distribute
or committed to distribute, and the Shareholders didn't practice
any act
nor they guided the IBR to distribute or they assumed any compromise
to
distribute, to give in or to burden, direct or indirectly, any of
the
their assets, resources, including available funds at any title of
IBR, to
the proper Shareholders, their related parts or third parties, except
if
contemplated in another way in this
Contract.
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| k) |
Recruiting
with related parts. The
SALESPERSONS were not celebrated nor compromised themselves to celebrate
any agreement, contract or arrangement involving the Shares and/or
the
Assets and/or the businesses of the Salespersons with any of their
related
parts.
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| l) |
Permissions,
Licenses and Authorizations. The
IBR assists, in this date, to all the criteria, legal and technical
demands, and necessary requirements for the obtaining of all the
permissions, licenses and authorizations demanded by the Legislation
and
regulation in effect, including the definitive licenses of operation,
to
regulate the IBR businesses operation, and in the Closing Date the
same
ones should have in their respective names all of the permissions,
licenses and authorizations demanded by the legislation and regulation
in
effect including the definitive licenses of operation, for the regular
IBR
businesses operation, valid and in total effect. The IBR is in strict
observance the all of the regulations, permits, entrances, normative
instructions, laws, norms and pertinent demands of protection to
the
environment instituted, organs and municipal, state and federal competent
departments. Considering that actually the environmental licenses
and the
license granted by the Petroleum Natural Agency allow a production
of IBR
of 65,000 (sixty five thousand) liters a day, in the Closing should
have
been take all the necessary procedures to request the enlargements
of the
respective licenses to authorize the IBR to work with a total capacity
of
100,000 m3/year.
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| m) |
Integral
Disclosure.
All the documents, contracts, instruments, certificates, warnings,
consents, sworn declarations, letters, declarations, annexes (including,
among other, the Annexes that constitute integral part of the present
instrument) and other documents delivered by the SALESPERSONS, or
in his
name, to the BUYER or the person for her suitable with respect to
the
present Contract or to the operations in him contemplated are faithful,
complete and authentic. No Document supplied by the SALESPERSONS,
or in
his name, to the BUYER or the person for her suitable by force of
the
present instrument or related to the operations in it contemplated
contains untrue declarations, or it omits relevant facts whose disclosure
in this instrument is compulsory or necessary so that the declarations
now
made don't turn false or induce to mistake, in the context find
here.
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| n) |
Inclusion
and Sufficiency of the Documents. The
transmission instruments and conference to be celebrated by the
SALESPERSONS and delivered to the BUYER, in the Closing will be valid
and
feasible according with their respective terms, being enough to give
in,
to transfer and to grant to the BUYER, in the occasion of the Closing,
the
Shares and the Assets, according to the case, that will include,
on the
other hand, all of the goods related or necessary to the conduction
of the
IBR biodiesel businesses, in the way that these are being
conducted.
|
5.2 The
BUYER
informs the followings declarations and warranties, which should be true and
corrects in the Closing Date.
| a) |
Constitution,
Power and Authorization, The
BUYER have full powers to celebrate this Contract, to accomplish
their
obligations now assumed and to consummate the operations contemplated
in
the present Contract, having been taken all the necessary measures
to the
authorization and consummation of the operation object of this Contract,
not being necessary, therefore, that be take additional measures
to occur
the signature and the formalization of that
Contract
|
| b) |
Of
the Non Violation. The
consummation of the operation here contemplated won't constitute
or it
will result in the violation of any term, condition or disposition,
nor
will it constitute breach of contract of the terms,
in
agreement with any contract or other instrument that any of the BUYERS
are
part or interested party. That consummation either will violate any
law,
regulation, sentence, instruction or judicial order that forces the
SALESPERSON.
|
| c) |
Integral
Disclosure.
All the documents, contracts, instruments, certificates, warnings,
consents, sworn declarations, letters, declarations, annexes (including,
among other, the Annexes that constitute integral part of the present
instrument) and other documents delivered by the BUYER, or in his
name, to
the SALESPERSONS or the person for her suitable with respect to the
present Contract or to the operations in him contemplated are faithful,
complete and authentic. No Document supplied by the BUYER, or in
his name,
to the SALESPERSONS or the person for her suitable by force of the
present
instrument or related to the operations in it contemplated contains
untrue
declarations, or it omits relevant facts whose disclosure in this
instrument is compulsory or necessary so that the declarations now
made
don't turn false or induce to mistake, in the context find
here.
|
SECTION
SIX
AUDITING
AND TECHNICAL OPINION
6.1
Starting from the present date and until the Closing Date, the SALESPERSONS
will
provide total and unrestricted access to the BUYER, to their lawyers and others
advisors, to the Assets and will give to them, in the largest possible brevity,
so that the BUYER can make an auditing and legal, accounting, technique and
financial review of the Assets, of the IBR and of the Biodiesel Business, with
the intention of verifying the precision of the Warranties and Declarations
presented.
SECTION
SEVEN
SOLIDARY
RESPONSIBILITY AND COMPENSATION RIGHT
7.1 The
SALESPERSONS will answer solidary before BUYER for all and any values that
was
forced, such as tributes, fiscal contributions or related to Social Security
and
many, that by chance left of being paid by SALESPERSONS in the dates demanded
by
law, that were not provide in the IBR and relative to generating facts occurred
previously to the Closing Date, as well as any obligation, contingent or not
of
civil nature, trade, labor, environmental, related to Social Security or fiscal
of the SALESPERSONS or that have been for these assumed by legal and relative
succession force to occurred facts or acts practiced previously to the Closing
Date.
7.2 The
SALESPERSONS recognize and agree that any cost, expense, penalty, damage, loss,
injury or responsibility of any nature or species (including interests,
indexation, lawyer fees and judicial and administrative costs) incurred by
BUYER
due to the SALESPERSONS (i) having occurred Closing Date, rendered any
Declaration and Warranty that it is not true, complete or correct; or, (B)
disobeyed the current obligations of the Sections Ten and Eleven of the present
Contract; they can be compensated and deduced against the parcels still pendants
of the Acquisition Price.
7.3 In
case
of the Closing Date doesn't occur because the auditing, the evaluation and
the
legal revision foreseen above verified that the declarations and warranties
are
not correct, or they are not complete nor satisfactory, in the terms of the
Contract or that the debts or contingencies related to the Assets overcome
those
published in the terms of this Contract or of their enclosures, the BUYER and
the SALESPERSONS should negotiate, in good faith, adjustments down or upward
in
the value of the parcels of the Acquisition Price.
7.4 The
BUYER, in the case of verification of any value that wish the compensation
by
the SALESPERSONS of the Part of the Acquisition Price, in the terms of the
previous clause, in having parcel of the Acquisition Price still due to
SALESPERSONS, this payment will be suspended and BUYER should send notification
to SALESPERSONS so that these, inside of the period of 15 (fifteen) days, show,
in writing, in the sense of to agree or to disagree of such compensation. In
the
eventuality of the Salespersons to disagree with the compensation in subject,
within 15 (fifteen) days, after the reception for BUYER of the respective
manifestation, a meeting will be accomplished between the Parts so that them
endeavor the best efforts to negotiate, in good faith, as the eventual
contingencies, costs, expenses, fines in subject will be supported.
7.5 The
obligations contemplated in this Section Seven and the Declarations and
Warranties will subsist at the end of this Contract, staying in effect until
the
end of the period of prescription and decadence of each one of the respective
obligations or in until 5 (five) counted years from the Closing Date, what
last
to happen.
SECTION
EIGTH
INTERNAL
MANAGEMENT
8.1 Since
the
day of signature of this Contract, until the Closing Date or the end of this
Contract, the Salespersons guarantee that the administration of IBR will be
accomplished in a responsible way and maintaining the normal course of the
activities of the company, not increasing the Debt of IBR (except in the
necessary measure for the maintenance of the business) and executing all of
the
obligations of the normal course of the company, including to honor the
expirations of debts and duties in the expiration dates, by Extraordinary
Dispositions of Assets.
8.2 Between
the present date and the Closing Date or the end of this Contract, the IBR
won't
distribute nor will commit to distribute, and Shareholders won't practice any
act nor they will guide IBR to distribute or they will assume any commitment
to
distribute, to give in or to burden, direct or indirectly, any of their assets,
resources, including available funds the any title of the IBR, to the
Shareholders, their related parts or third parties, except by Extraordinary
Disposition of Assets.
8.3 Between
the present date and the Closing Date or the end of this Contract, the
SALESPERSONS accept that the BUYER will participate, together with the
SALESPERSONS, but without power of mismanagement, of negotiations of biodiesel
sale, through direct sale or auctions, raw material purchase and obtaining
of
the Social Stamp for the enterprise.
SECTION
NINE
PERIOD
AND RESCISSION
9.1 This
Contract goes into effect in this date, and it will stay in total effect until
the date that occur any of the following events (the "Period of Validity")
first: (i) the effectuation of the operation here contemplated in the Closing
Date or (ii) the not execution in a satisfactory way, at the BUYER criteria,
of
the Closing Conditions within 120 (hundred and twenty) days to count of the
present date.
9.2 The
SALESPERSONS commit to endeavor their best efforts so that all the Closing
Conditions are accomplished in the smallest period reasonably
practicable.
SECTION
TEN
EXCLUSIVITY,
NON-CONCURRENCY
10.1 SALESPERSONS,
during the period of Validity, agree in negotiating in exclusiveness character
with BUYER, the sale of the Assets (in the whole or partly), and they commit
to
not celebrate any relative contract to the Assets, not to emit any new shares
of
IBR, not to transfer any share that they have of IBR and, not to allow the
constitution of any gravamen on the shares and on the businesses of the
Salespersons, except those contemplated in this Contract. When of the Closing
Date, and in consideration to the Acquisition Price, each SALESPERSON commits,
without the need of any additional documentation, to abstain, direct or
indirectly, of competing with IBR or with any of their related parts under
any
form for the period of five years to be counted from the Closing Date, in the
markets explored by IBR. They are excepted of the obligation of no competition
now made a pact in case Shareholders accomplish, after the defined period in
10.2, their businesses out of a minimum radius of 300 km from the facilities
of
IBR.
10.2 Until
the
Closing Date, the Shareholders and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Lima will celebrate a
contract of technical advisory, in terms and conditions to be defined jointly,
for which will commit to render advisory services related to the Businesses
of
Biodiesel with exclusiveness for the BUYER for a period of, at least, 12
months.
SECTION
ELEVEN
CONFIDENCIALITY
11.1 Each
Part
should maintain secrecy on all of the obtained information of the other Part
in
relation to the present Contract that are not of public knowledge, don't have
been known independently or developed, that has not been obtained with third
parties or that are not of public knowledge because of non-compliance of the
Part that has received (jointly the "Confidential Information") her. The
Confidential Information (that can be oral, writing or magnetic, being
designated or not as "confidential", and that included contact information
and
information regarding structures, negotiation methods or financial organization)
only will be able to be used by the receiving Part in the effectuation of the
transactions contemplated in this Contract and for none other purpose. In the
hypothesis of rescission of this Contract, all of the documents (including
the
copies) obtained because of this Contract by one Part should be returned to
the
other pertinent Part, however, the confidentiality obligations and limitation
to
the use will stay in effect for the period of two years after the rescission
date. Each Part commits to not publish and to maintain in secrecy the terms
and
conditions of this Contract, being included, but if not limiting to the
compensation to be paid above, except if the disclosure of those information
is
demonstrated obligatory for the consummation of the purchase and sale
contemplated in this Contract, disputed by any government authority, applicable
law or regulate of the Stock Exchange to which the Part is submitted, or if
she
obtains the consent of all the other Parts listed. In the case of noncompliance
of the obligations of this clause for one of the Parts, the non-compliance
Part
should compensate the other for loss and damages.
SECTION
TWELVE
FINAL
DISPOSITIONS
12.1 The
Parts, in this act, expressly, agree with all the terms and conditions of the
present Contract, having nothing to oppose to it, at any title and any time,
assuming an obligation, to accomplish all of the acts and necessary formalities
to the full and perfect formalization of the sale of the Shares and of the
Assets now contracted, besides before all of the competent organs, signing
contractual alterations and any other documents that become necessary for so
much.
12.2 The
present Contract is signed of irrevocable and irretractable form, forcing the
parts and their successors the any title.
12.3 The
present Contract cannot be amended or altered without the approval of all the
parts, in writing, and, except for the cases expressly foreseen in this
Contract, none of the Parts can give in or to transfer any of their rights
and
obligations originating from of this Contract, without the consent of the other
Parts.
12.4 The
nullify, inefficacy or unachievable of any of the dispositions contained in
this
Contract, will not invalidate nor will turn inoperative or unachievable any
of
the other dispositions of the present Contract, which will continue in total
effect. The Parts should negotiate the necessary measures to solve such
dispositions of eventual existent addictions.
12.5 All
and
any communications or notifications referred to the present instrument should
be
made in writing and sent to the Parts by letter registered with return warning,
or for telefax for the addresses below discriminated:
If
to the
SALESPERSONS:
IBR
INDÚSTRIA BRASILEIRA DE RESINAS LTDA.
At.;
Hilton ▇▇▇▇▇▇▇ Lima
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇-▇▇,
▇▇▇ 41.810-120
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
HBL
PARTICIPAÇÕES E EMPREENDIMENTOS LTDA.
At.:
Hilton ▇▇▇▇▇▇▇ Lima
Rua
Alfazema, n° 761, Ed. Iguatemi Business & FI, Sala 501
Salvador,
BA, CEP: 41.820-710
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
HILTON
▇▇▇▇▇▇▇ LIMA
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇ 41.810-120
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ LIMA
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇ 41.810-150
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
Vetor
Consultoria
At.
▇▇▇▇▇▇ ▇▇▇▇▇▇
R.
Dr.
▇▇▇▇ Peroba, n. 349, Ed. Empresarial Costa Azul, 8 andar
Salvador,
BA, CEP ▇▇▇▇▇-▇▇▇
Fax
(▇▇) ▇▇▇▇-▇▇▇▇
If
to the
BUYER
COMANCHE
PARTICIPAÇÕES DO BRASIL LTDA.
AT.:
Ivo
Tolesano Jr.
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇▇▇ - ▇▇▇▇▇-▇▇▇ São Paulo/SP
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
cc.
MHMK
- Sociedade de Advogados
At.
▇▇▇▇▇
Soo Hong
Av,
Brigadeiro ▇▇▇▇▇ Lima, 1461, 12 andar
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
12.6 The
execution of the obligations here contained is subject to the specific execution
and can be demanded by the part in full performance in agreement with the
Articles 461, 461A, 466A, 466B and 466C of the Code of Civil Process of Brazil
(Law 5.869, January 11th,
1973,
as altered).
12.7
The
present Contract should be governed and interpreted in agreement with the laws
of the Federal Republic of Brazil.
12.8 In
the
form of the Law n° 9.307/96, the Parts commit themselves to submit to the
arbitration all and any litigations and controversies that can occur of the
Interpretation and execution of the present Contract and that cannot be solved
in a friendly way.
| 12.8.1 |
The
arbitration will be processed in the City and State of São Paulo, and will
be driven by the Chamber of Commerce Brazil - Canada, in agreement
with
its respective regulation.
|
| 12.8.2 |
Referees
and Language of the Arbitration: The Parts agree that the arbitration
will
be driven by 3 (three) referees, and the litigations will be judged
in
agreement with the effective right rules in the Country. The arbitration
will be driven in Portuguese.
|
| 12.8.3 |
The
final decision uttered by the referees will be definitive and will
force
the Parts, being banned to the Parts any resources to the Judiciary
Power.
The due Part will pay to the winner Part of the procedure by arbitration
all of the costs and expenses incurred by the winner Part in relation
to
the arbitration, including lawyer’s fees, as defined in decision by
arbitration, and the fees of the referees. The arbitration process
should
be ended, at maximum, in 6 (six) months to count from the indication
of
the referees.
|
| 12.8.4 |
Independently
of the determination in this Clause, it is guaranteed to any of the
Parts
the right of helping itself at the Judiciary Power to obtain precautionary
measure the any time, to obtain protection premature case the procedure
by
arbitration still has not been instituted and, still, in other cases
allowed by Chamber of Commerce Brazil - Canada Regulation.
|
It
is
like this, for they be fair and contracted, the parts sign the present
instrument in 02 (two) pages, of equal form and content, in the presence of
the
two witnesses below.
ANNEX
A
to
the
PARTICULAR
INSTRUMENT OF PURCHASE AND SALE AND OTHER AGREEMENTS
Assets
|
PROCESS
EQUIPMENT
|
|
Distillation
column, with stuffing type Paul's Ring, in steel carbon, capacity
10 m3
and reboiler type Ketlle, still no installed;
|
|
Condenser
skull and tubes, in steel carbon;
|
|
Pumps
of positive displacement, capacity of 30 m3/h, with electric
start;
|
|
Vases
to homogenize, capacity of 5m3/h, with system of agitation of concentric
shovels;
|
|
Structure
metallic with three floors to shelter the unit of distillation and
for
support of the reactor and accessories, in beams of galvanized steel,
profile type I, thickness of 12", with floor of plaid foil, thickness
1/8", with area of 25 m2, and two levels, with total height of
12m;
|
|
Piping
group in steel carbon of 2" - 40 m;
|
|
Tanks
for wash and purification of finished product, with capacity of 30
m3
each, fiberglass;
|
|
Retention
column of heavy condensed, associated to the top of the reactor,
in
stainless steel, with shirt of cooling and stuffing of rings, type
Poli
Dimensions: high= 2,80 m; internal diameter = 0,30 m;
|
|
Condenser
type skull (carbon steel) and tubes (stainless steel), with area
of
thermal change of approximately 30 m2, length of 2,5 m and 0,5m
diameter;
|
|
Accumulation
tank of having condensed, stainless steel, capacity of 1.000
l;
|
|
Vacuum
pump, capacity 220 m3/h, vacuous of 710 mm Hg, with motor of 15
HP;
|
|
Group
of accessories for system of vacuum: valves, tanks for water, vacuum
meter, piping;
|
|
Filters,
basket type, with screens in stainless steel, linked with piping
and
valves of 2", carbon steel, with gear pumps and motors of 10 HP,
for
pressure up to 5 Kgf/cm2;
|
|
Tank
of storage of the melted raw material, capacity of 10 m3, carbon
steel,
with agitation started by motor and reducer;
|
|
Gear
pump, for raw material transfer melted to the reactor, with piping
and
valves in carbon steel of 2";
|
|
Compressor
of air, for instruments and valves, pressure of 12
Kgf/cm2;
|
|
System
of elevation of loads, for feeding of solids to the reactor, composed
of
structure metallic elevating type and electric cut with steel cables
(maximum height = 10,0 m);
|
|
Reactor
for 6,0 t of product, in stainless steel, complete, composed of column,
condenser, separation vase, diluting vase,
pump of circulation and accessories for process
control;
|
|
Distillation
column, with 16 m of height for 0,8 m of diameter, in steel carbon,
with
vase reboiler, condenser, dressing room of heat, pump of circulation
and
accessories for process control;
|
|
Tank
in steel carbon steel, with capacity for 163 m3;
|
|
Tank
in carbon steel, with capacity for 60 m3;
|
|
Tank
in carbon steel, with capacity for 135 m3.
|
|
UTILITIES
|
|
Tower
for cooling water, with two centrifugal pumps, flow of 100 m3/h,
pressure
of 5.0 Kgf/cm2, with piping and valves, for cooling of process water
from
45° C to 30° C;
|
|
Heater
of thermal fluid, for temperatures until 350 centigrade degrees and
thermal capacity of 600,000 Kcal / h.
|
|
BUILDING
|
|
Immobile
good to be dismembered of the located property in the Via da Penetração
IV, Area of Light and Medium Industries, ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ Filho, State of Bahia, with area of
40,000 m2 or with enough area to install an industrial park with
capacity
of producing 100,000 tons of diesel a year and for stockpiling of
20,000
liters, what goes larger;
|
|
Group
of materials and manpower for the building site of an unit with three
floors of operation area, control room, administrative building,
dining
hall, parking, streets, watch towers of safety.
|
|
VEHICLE
|
|
Car;
|
|
Fork-lift.
|
|
LABORATORY
|
|
Setting
up of a laboratory for analyses of attendance of the production,
quality
control of raw materials and finished
products.
|