PURCHASE AND SALE PRIVATE INSTRUMENT AND OTHER ADJUSTMENT
PURCHASE
AND SALE PRIVATE INSTRUMENT AND OTHER ADJUSTMENT
By
the
present private instrument, the parties, on one side
·
FJJ
EMPREENDIMENTOS E PARTICIPAÇÕES LTDA,
limited
enterprise society, with headquarter in the city of Ourinhos, State of São
Paulo, at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇/▇▇, ▇▇▇ 19.900-300,
enrolled in CNPJ under the nr 08.624.635/0001-53, in this act represented in
the
form of its social contract by Mrs. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Brazilian, single,
natural of Ourinhos-SP, single, been born on July 25, 1968, business
administrator, bearer of the identity card RG 17.651.515 SSP/SP and CPF/MF
▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇/▇▇, ▇▇▇ 19.900-300 ("FJJ")
·
NETOIL
INTERMEDIAÇÃO DE NEGÓCIOS LTDA.,
limited
society, with social headquarter at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇° 33, 7° andar, sala
71, municipal district of Assis, State of São Paulo, CEP 19806-130, enrolled in
CNPJ under nr. 02.412.386/0001-74, in this act represented in the form of its
social contract by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Brazilian, divorced, business
administrator, bearer of the identity card RG n° 6.478.373-X SSP/SP, enrolled in
CPF/MF under nr ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled at Av. ▇▇▇▇▇▇▇▇, n°
1.509, apt.° 2, Higienópolis, in the Capital of the State of São Paulo and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Brazilian, judicially separated, economist, bearer
of the identity card RG nr. 10.356.668-5-SSP/SP, enrolled in CPF/MF under the
nr. ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled at the Street ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, no. 301, apt. 5, Morumbi, in the city of São Paulo - SP, CEP
05641-000 ("Netoil"); and
·
OURO
VERDE PARTICIPAÇÕES S/A,
private
company, with headquarter Rodovia ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, km. 04, sala 02,
Água do Barreirinho, municipal district of Canitar, State of São Paulo, enrolled
in CNPJ/MF under the nr. 74.520.776/0001-79, in this act represented in the
form
of their social statutes by ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Brazilian, married, civil
and
industrial engineer, bearer of the identity card RG nr. 6.495.201 SSP/SP,
enrolled in CPF / MF under the nr. ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled in
Fazenda Santo ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Preta, s/nº, Bairro Rural, Água do Barreirinho,
in the municipal district of Canitar, São Paulo state, CEP 18990-000, and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Brazilian, judicially separated, economist, bearer
of the identity card RG nr. 10.356.668-5-SSP/SP, enrolled in CPF/MF under the
nr. ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled Rua ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇, ▇▇▇▇ ▇, Bairro do Morumbi, in the city of São Paulo - SP, CEP 05641-000
(“Ouro Verde, OURO VERDE ou OV”)
(FJJ,
NETOIL and Ouro Verde from now on designated SHARE HOLDERS or SALERS together
and, separately, SHARE HOLDER or SALER)
and,
on
another side,
·
COMANCHE OF BRASIL PARTICIPAÇÕES LTDA,
society limited enterprise, with headquarter in the capital of the State of
São
Paulo, at Alameda Campinas, 463, 7º andar, enrolled in C.N.P.J. under the Nr.
07.751.535/0001-43, in this act represented by its Director, Mr. ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, Brazilian, married, business administrator, bearer of the identity card
RG nr. 5.255.932 SSP/SP, enrolled in CPF/MF under nr ▇▇▇.▇▇▇.▇▇▇-▇▇, with
commercial address in the capital of the State of São Paulo, at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇. ▇▇, from now simply designated "COMANCHE" or "BUYER";
(SALERS
AND BUYER designated together as Parties and individually as Party)
PRELIMINARY
CONSIDERATIONS
CONSIDERING
THAT:
I.
Ouro
Verde, FJJ and NetOil constituted the company Sidma Biocombustíveis de Canitar
Ltda ("Sidma"), society limited enterprise, with headquarter at Rodovia Vicinal
- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, km. 04, Água do Barreirinho, municipal district of Canitar,
State of São Paulo, in the capital of the State of São Paulo, enrolled in
C.N.P.J. under the Nr. 08.386.602/0001-30, to which Ouro Verde gave certain
active rights, rights resulting from the licenses, authorizations and operation
permissions and other licenses, definitive or temporary, equipment for grinding,
transport, alcohol and flowed distillation production, besides, among other,
the
ones described and characterized in the ANNEX A to the present, that, together
with the Ouro Verde brand and mercantile leasing contracts of some assets,
represented the totality of the movable and fixed assets of Ouro Verde
previously to Sidma constitution ("Assets"), as well as gave up the Obligations
with COMANCHE below defined.
II. Share
holders are titular and legitimate proprietors of the totality of the
representative shares of 100% (one hundred percent) of the social capital of
Sidma ("Shares"), these shares free from any burden, obligations, duties,
responsibilities or disputes before third parties.
III. Until
the
present date 6 (six) contracts were signed with the following characteristics:
(i) the Purchase and Sale of Moisturized Ethyl Alcohol and Other Adjustment
Contract ("Contract A"), between BUYER and OURO VERDE, in the value of R$
554.046,00 (five hundred, fifty four thousand and forty six real), on June
24,
2006; (ii) Purchase and Sale Contract of Moisturized Ethyl Alcohol and Other
Adjustment ("Contract B"), among the BUYER and OURO VERDE, in the value of
R$
545.985,45 (five hundred and forty five thousand, nine hundred and eighty five
real and forty five cents), on June 24, 2006; (iii) the of Purchase and Sale
of
Moisturized Ethyl alcohol and Other Adjustment Contract ("Contract C"), between
BUYER and OURO VERDE, in the value of R$ 482.800,00 (four hundred eighty two
thousand and eight hundred real), on June 24, 2006; (iv) the Purchase and Sale
Contract of Moisturized Ethyl alcohol and Other Adjustment, among Octet Dates
Centers Participações Ltd., with headquarter in Av. Eng. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
1.253, 5th floor, enrolled in CNPF/MF under the no. 04.269.523/0001-99 ("Octet")
and OURO VERDE, in the value of R$550.000,00 (five hundred and fifty thousand
real), on August 18, 2006 ("Contract D") (v) Purchase and Sale of Moisturized
Ethyl Alcohol and Other Adjustment, between Octet and OURO VERDE Contract,
in
the value of R$130.000,00 (One hundred and thirty thousand real), in 15 of
September 2006 ("Contract E"), (vi) Loan Contract, celebrated among the BUYER
and OURO VERDE, in this date, in the total value of R$2.146.213,90 (two million,
one hundred and forty six thousand, two hundred and thirteen real and ninety
cents), regarding to payments already accomplished by the BUYER, in cash, to
Ouro Verde ("Contract F"). The Contracts A, B, C, D, E and F are equivalent
to
the value main total of R$4.409.045,35 (four million, four hundred nine thousand
and forty five real and thirty five cents) ("Obligations with COMANCHE"), which
follow as ANNEX B to the present Contract;
IV. Observed
the established conditions in the present instrument, the BUYER wants to acquire
from the Share holders all the Shares, and Share holders want to sell the Shares
to the Buyer;
THE
PARTIES decide to celebrate the present Private Instrument of Purchase and
Sale
and Other Adjustment ("Contract") which will regulate the Shares acquisition
in
front of the SALERS, in the below terms and conditions:
SECTION
ONE
INTEGRAL
AGREEMENT
1.1.
The
Parties agree by this Contract that the terms and conditions here foreseen
replace all and any previous agreement or contract, preliminary or definitive,
by the Parties or by or parties the these related.
SECTION
TWO
CLOSING
2.1.
In
the date that all the Closing Conditions are accomplished, as defined in Section
Four below, (the “Closing Date"), in accordance with the terms and conditions of
the present Contract, by the payment of the price stipulated in Clause 3.3
below, the BUYER will acquire from the SALERS the Shares.
2.2
In
the Closing Date, SALERS and BUYER should accomplish the Shares transfer, by
the
practice of all the necessary actions for the effective Shares purchase and
sale
presently mentioned, as, for instance, without limitation, the celebration
of
the instrument alteration of the Sidma Social Contract.
SECTION
THREE
PURCHASE
PRICE AND PAYMENT OF THE PURCHASE PRICE
3.1.
In
the Closing Date, and since the Closing Conditions foreseen in Section Four
below have been integrally satisfied, at a reasonable criterion by the BUYER,
the BUYER, or that by it designated, will pay to the SALERS, as price for the
Shares, R$ 3.400.000,00 (three million and four hundred thousand real), added
to
the remaining Ouro Verde debts, as defined in ANNEX 3.1., besides until a limit
of R$500.000,00 (five hundred thousand real) remainder of passive relative
to
the Ouro Verde operation of the (the " Remaining Debts of OV") (jointly, the
"Acquisition Price"), as eventually adjusted in the terms of below clauses
3.3
and 3.4, to be paid in the following conditions:
(i)
The
value of R$ 3.400.000,00 (three million and four hundred thousand real), to
OURO
VERDE, being:
a.
R$1.700.000,00 (One million and seven hundred thousand real), in national
currency, being R$850.000,00 (eight hundred and fifty thousand real), spot
cash,
in the Closing Date and against the final documents signature and delivery
formalizing the Shares transfer and the remaining balance in 3 (three) portions,
on which will happen indexation and interests with base in the Savings
“Poupança” variation, being the interests monthly owed, and the portions will
have the following characteristics: the first will be of R$150.000,00 (hundred
and fifty thousand real), owed in 6 months to count from August 31, 2006, the
second, in the value of R$350.000,00 (three hundred and fifty thousand real),
owed on August 31, 2007, and the third, in the value of R$350.000,00 (three
hundred and fifty thousand real), to be paid on February 28, 2008;
b.
R$1.700.000,00 (a million and seven hundred thousand real) in so many ordinary
actions or shares of COMANCHE Clean Energy Corporation, as they are necessary
for such value to be reached.
(ii)
The
Ouro Verde Remaining Debts, estimated in R$4.884.264,31 (four million, eight
hundred and eighty four thousand, two hundred and sixty four real and thirty
one
cents) on April 30, 2006, to be adjusted in reason of interests incurred in
the
period between April 30, 2006 and the Closing Date, as detailed in ANNEX 3.1
(ii), besides until a limit of R$500.000,00 (five hundred thousand real)
remainders of passive relative to the Ouro Verde operation.
3.2.
▇▇▇▇▇ will assume the debts represented by the Obligations with COMANCHE,
constituted by the Contracts A, B, C, D, E and F, in total main value of
R$4.409.045,35 (four million, four hundred nine thousand and forty five real
and
thirty five cents).
3.3.
The
value of the portions of the stipulated price in items (i) and (ii) of clause
3.1 supra will suffer a proportional adjustment in the hypothesis of, in the
Closing Date, the debts and contingencies of Ouro Verde are superior to the
Remaining Debts of Ouro Verde, as detailed in ANNEX 3.1 (ii), or the debts
and
contingencies of Sidma are larger than the Debts with COMANCHE, which the BUYER
declares to know.. If in the Closing Date any debt is found, contingency or
passive that commits Ouro Verde, Sidma, the Shares or the Assets, the BUYER,
at
its exclusive criterion, can accept to assume such debt, contingency, inadequacy
asset or passive supervenience, since the Acquisition Price, in the part
regarding the payment portions referred in the clauses 3.1 (i) and (ii),
depending on the case, is reduced by the equivalent amount.
3.4.
The
SALERS, amongst themselves, recognize that the portions indicated in Clause
3.1
(i) and (ii) should be allocated among the SALERS, in the following way: (a)
the
value foreseen in clause 3.1 (i) (a) will be destined to OURO VERDE, for latter
delivery to FJJ SHARE HOLDER and in clause 3.1. (i) (b) it will be destined
to
OURO VERDE, for latter delivery to NETOIL SHARE HOLDER, and the value indicated
in clause 3.1. (ii) it should be used for integral quittance of Ouro Verde
Remaining Debts, which will be paid off directly by the Buyer in accordance
to
demandable.
3.5.
SALERS and the BUYER respectively recognize and accept, observing the allowed
in
law, that will adopt and use the values indeed allocated to each assets or
class
of assets, in all of the state or federal taxes declarations or demonstrations,
or of another applicable instance, abstaining from adopting any inconsistent
voluntarily position in that sense, when proceeding to the preparation of such
tributes declarations or demonstrations, in restitution forms, still, in any
action or process that come to be instituted regarding the mentioned
declarations or demonstrations of Tributes. In spite of any disposition in
opposite contained in the present instrument, the above foreseen commitment
will
subsist to the Closing Date, in a restricted way the legal responsibility and
for a period of the legal termination of the respective obligations.
SECTION
FOUR
SUSPENSIVE
AND/OR RESOLUTIVE CONDITIONS
4.1.
The
Parties
in this
act agree that it is precedent condition to the consummation of the operation
here mentioned and to the Shares effective acquisition, in the terms of this
Contract, by the Acquisition Price payment, the conditions mentioned to follow
(the " Closing Conditions"), must have been fully satisfied, be in the full
force and be satisfactory to the BUYER, to know:
a)
Sidma
should be properly constituted with all the Assets, as well as the Debts with
COMANCHE.
b)
The
declarations and warranties rendered by the SALERS, 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 the
referred Declarations and Warranties are complete and valid;
c)
The
confirmation that the BUYER, through Sidma and as a consequence of the Shares
acquisition, assists all the criteria and necessary requirements to obtain
all
the previous licenses, installation licenses and/or operation licenses required
by the legislation and regulation in force so that this can exercise the
grinding activity, sugarcane in stem industrialization and processing, for
alcohol production, storage and commercialization and its byproducts;
d)
Confirmation by NETOIL SHARE HOLDER that OURO VERDE or Sidma won't be made
responsible, at any time, in function of eventual condemnation in the court
records of the fiscal execution nr. 240/02, that is carried out in front of
the
of Assis District Court;
e)
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 described;
f)
The
BUYER have been capitalized in, at least, R$ 30.000.000,00 (thirty million
Real);
g)
The
SALERS should have accomplished the Assets version to Sidma, that must (i)
have
as share holders the SALERS and OURO VERDE, and (ii) keep all the Assets, which
should be transferred to Sidma, through the Assets version, everything in
accordance with the corporate movement described in Considering I of this
Contract;
h)
The
SALERS must, previously to the Closing Date, (i) alter the Sidma Social
Contract, so that it has, in the Closing Date, the same social object that
has
OURO VERDE in this date, (ii) alter OURO VERDE social object for the social
object of the holding society (participation in other societies), and (iii)
alter the OURO VERDE social headquarter,
to a
place different of the social headquarter
place in
this date, so that there is no conflict with the Sidma social headquarter.
Such
moving is essential condition to obtain all the operational licenses for Sidma,
as foreseen in item "c" of this Clause;
i)
OURO
VERDE assumes an obligation before COMANCHE to begin the transfer process of
all
of the necessary licenses for Sidma operation, inclusive by means of the
necessary documentation protocol before the competent organ, observed item
"c"
of this Clause;
j)
The
SHARE HOLDERS assume an obligation to sign, on OURO VERDE behalf, in this
date,
the
Enclosed document 4.1 ("i") to the present, to formalize the contract for the
OURO VERDE operational licenses use by Sidma, in order that this last, at once,
one can exercise all of the activities that OURO VERDE performs
today;
k)
The
Closing Conditions totality must have been assisted until April 09, 2007 (the
“Closing Date Limit ").
SECTION
FIVE
DECLARATIONS
AND WARRANTIES
5.1
The
SALERS render each one, individual, solidarly and unlimited in favor of the
BUYER, by themselves and by the entities that represent in this Contract,
according to the case, the following Declarations and Warranties, which should
be true and correct in this date and in the Closing Date regarding to OURO
VERDE, NETOIL and FJJ, as applicable, and they should be, regarding Sidma,
in
the Closing Date:
a)
Of
the Non Violation.
The
operation consummation here contemplated won't constitute or will result in
the
violation of any term, condition or disposition, neither it will constitute
default of the terms, nor it will result in the creation of any duty,
responsibility or obligation over the Shares, and/or over the Assets, in
accordance with any contract or other instrument that any of the SALERS, OURO
VERDE or Sidma are contracting or interested party. That consummation either
will violate any law, regulation, sentence, ruling or order that forces the
SALERS, OURO VERDE or Sidma, as well as it won't result in the loss of any
license, certificate, local approval or local right that SALERS, to OURO VERDE,
Sidma or the Assets have or come to have, nor they will commit the Operational
Capacity, according to clause 5.1 (g) definition.
b)
Observance
to the Laws.
The
SALERS operations and activities relatively to OURO VERDE, Sidma or to the
Assets don't violate any determinations or applicable laws of any government
organ, nor the SALERS received any warning or notification that such violations
went or could come to them imputed. They are not in course or are imminent
any
investigations or analyses by any Government Organ, involving the SALERS, Ouro
Verde, Sidma or the Assets, nor the SALERS received any warning or notification
concerning the of government organs intention in proceeding in that sense.
c)
OURO
VERDE and SIDMA Corporate Constitution.
OURO
VERDE and Sidma are societies properly constituted and valid existent and in
regular situation, having full power and corporate authorization to drive their
businesses as they presently do and to have the properties and the goods that
now have.
d)
Sidma
Social Capital and Shares.
The
Sidma social capital is, in this date, R$ 634.234,00 (six hundred thirty four
thousand, two hundred and thirty four real) and is divided and represented
by the
Shares, which were properly integralized by the SALERS, all of the Shares are
free and free of any duty, pledge, obligation and warranty and rights of any
nature. The SALERS didn't check, nor exist options, preferably rights, pledge
or
other similar rights relative to the Sidma shares. There is no law suit,
administrative process or other fact or circumstance that could impede or
interfere in the transfer of the Assets to Sidma, or the future Shares transfer
to the BUYER, in the terms of the present Contract.
e)
Constitution,
Power and Authorization.
The
SALERS have full power to celebrate this Contract, accomplish their obligations
now assumed and consummate the operations mentioned in the present Contract,
having been taken all the measures necessary to the authorization and the
operation consummation object of this Contract, not being necessary, therefore,
that are taken any additional measures so that happens the signature and the
formalization of this Contract.
f)
Assets
Ownership.
Sidma
is titular, legitimates owner and possessor of the total of the Assets, as
described in ANNEX A and that such Assets are free and free of any duty, pledge,
obligation and warranty and rights of any nature, except those duties
originating from of the identified debts with (*) in the ANNEX A. OURO VERDE
and/or the SALERS and/or Sidma not celebrated, until the Closing Date, any
contract or agreement that has for object the Assets or the pledge constitution
or other similar rights relative to them.
g)
Operational
Capacity.
The
Assets are capable to operate according to description of ANNEX 5.1 (g) (the
"Operational Capacity"), having been administered and operated in its normal
course of business by OURO VERDE or Sidma employees, according to the case,
or
third parties by these authorized, in accordance with follow up done by the
Buyer, and all the production accomplished by the Assets after April 30, 2006,
as well as with the stock, at the Closing Date, it is not object of the sale
contract or similar contract, nor is subject to any commitment, obligation
or
other duty, except the sales previously signed in 04/30/2006 with Ale
Combustíveis, in a value limited to R$250.000,00 (two hundred and fifty thousand
real).
h)
Obligations
of the SALERS.
Except
by the Obligations with COMANCHE and by the Remaining
Debts of OURO VERDE, the SALERS, Ouro Verde or Sidma, together or individually:
(i) don't possess any obligation or responsibility, either incurred, contingent
or of any other nature, besides civil, commercial, fiscal, environmental, labor
or social security obligations that can affect the respective ownership rights
over OURO VERDE, Sidma, the Shares or the Assets and didn't assume any
obligation or responsibility involving OURO VERDE, Sidma, the Shares or the
Assets; (ii) they are not parties, neither they are subject to, any litigation,
law or administrative suit, in any instance that can affect OURO VERDE, Sidma,
the Shares or the Assets; and (iii) they are not guarantors, bondsmen or of
other form covenanters of any obligations nor they are parties
of any
contract by force of which assume an obligation to honor any obligations that
of
some form can commit OURO VERDE, Sidma, the Shares or the Assets.
i)
Normal
Course of Operation.
OURO
VERDE, Sidma and the Assets will be administered and operated among from the
present date and the Closing Date in their respective normal courses of
business, being sure that the SALERS didn't acquire, through Ouro Verde or
Sidma, starting from 04.30.2006 for Ouro Verde and starting from its
constitution by ▇▇▇▇▇, until the Closing Date, new debts, not strictly related
and necessary to OURO VERDE business (or of Sidma, according to the case) and
the readjustments due to interests and fines of the Ouro Verde Remaining Debts.
j)
No
distribution of assets or resources.
Between
April 30, 2006 and the Closing Date, OURO VERDE didn't distribute or committed
itself to distribute, and the SALERS didn't practice any act nor oriented OURO
VERDE or Sidma to distribute or assumed any commitment to distribute, give
up or
burden, direct or indirectly, any of their assets, resources, besides available
funds, at any title, of OURO VERDE or Sidma to the own SALERS, their related
parties
or third
parties,
except
if in other way contemplated in this Contract, except in the necessary measure
for the exclusive satisfaction of the portions of the Debts of OV due between
April 30, 2006 and the Closing Date, and since in terms and market conditions
and in commutative character (the " Assets Extraordinary Disposition ").
k)
Contracting
with related parties.
The
SALERS did not celebrated nor committed themselves to celebrate any agreement,
contract or arrangement involving OURO VERDE, Sidma, the Shares and/or the
Assets with any of their related parties.
l)
Permissions,
Licenses and Authorizations.
OURO
VERDE and Sidma assist to all of the criteria, legal and technical demands,
and
necessary requirements to obtain of all of the permissions, licenses and
authorizations demanded by the legislation and regulation in force, including
the definitive operation licenses ("Licenses"), for the regular operation of
the
respective business, 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 force, including the definitive licenses
of
operation, for the regular operation of the business of OURO VERDE, valid and
in
full force. OURO VERDE and Sidma are in strict observance to all of the
regulations, permits, administrative rules, normative instructions, laws, norms
and pertinent demands for environment protection instituted by the municipal,
state and federal competent organs and departments. The SALERS declare and
guarantee that, in case the necessary Licenses to run the businesses of OURO
VERDE have not indeed transferred to Sidma, in the Closing Date, such Licenses
should have their transfer indeed requested to the competent organs by the
SALERS, in accordance with the regulation in force, until the Closing Date.
The
SALERS, additionally, declare and guarantee that will accomplish all of the
acts
and necessary actions to the effective consummation of the above mentioned
transfers.
m)
Integral
Disclosure.
All the
documents, contracts, instruments, certificates, notes, consents, sworn
declarations, letters, declarations, enclosures (besides, among other, the
Enclosures that constitute integral part
of the
present instrument) and other documents given by the SALERS, or in its name,
to
the BUYER or to the person for by it indicated with respect to the present
Contract or to the operations in it contained are faithful, complete and
authentic. No Document provided by the SALERS, or in its name, to the BUYER
or
the person by it indicated by force of the present instrument or regarding
the
operations in it mentioned contains untrue declarations, or omits relevant
facts
whose disclosure in this instrument is compulsory or necessary so that the
declarations now done don't become false or induce to mistake, in the context
that they here are.
n)
Inclusion and Sufficiency of the Documents. The transmission and conference
instruments to be celebrated by the SALERS and given to the BUYER, in the
Closing will be valid and feasible in accordance with their respective terms,
being enough to give up, to transfer and to give to the BUYER, in the occasion
of the Closing, the Shares, that will include, by its time, all of the goods
related or necessary to the running the business of the OURO VERDE and Sidma,
in
order that these are being now done.
5.1.1
For
the due execution of the item "l" of this Clause 5.1, the SALERS will grant
to
the BUYER, in the Closing Date, a procurement, irrevocable, in a form and
content satisfactory to the BUYER, with powers so that the BUYER can execute
all
the necessary acts to transfer the Licenses to Sidma or to whom the BUYER
indicates, including, for such, powers for the ownership transfer, modifications
or complements registration, issue declarations, signing all and any documents
in front of the competent authorities for the good and faithful execution of
this Contract.
5.2.
the
BUYER renders the following declarations and warranties, which should be true
and correct in the Closing Date.
a)
Constitution,
Power and Authorization.
The
BUYER has full power to celebrate this Contract, to accomplish their obligations
now assumed and to consummate the operations included in the present Contract,
having been taken all the necessary measures to the authorization and the
consummation of the operation object of this Contract, not being necessary,
therefore, that are taken any additional measures so that happens the signature
and the formalization of this Contract.
SECTION
SIX
SOLIDARY
RESPONSIBILITY AND COMPENSATION RIGHT
6.1.
The
SALERS will solidary answer in front of the BUYER for all and any values that
were forced, such as tributes, fiscal or social security contributions and
fines, that by chance stopped being paid by the SALERS in the dates demanded
by
law, that were not provisioned at OURO VERDE (or at Sidma, according to the
case) and relative to generating facts happened previously to the Closing Date,
as well as any obligation, contingent or no, of civil, commercial, labor,
environmental, social security or fiscal nature of the SALERS that have been
by
these assumed by legal and succession force and relative to happened facts
or
actions practiced previously to the Closing Date.
6.2.
The
SALERS recognize and agree that, they can be compensated and deduced against
the
portions still pending of the Acquisition Price, any cost, expense, penalty,
damage, loss, damage or responsibility of any nature or species (including
interests, indexation, attorney’s fees and judicial and administrative costs)
incurred by the BUYER due to the SALERS (i) after accomplished the acquisition
transaction of the Shares included in this Contract, rendered any Declaration
and Warranty that it is not true, complete or correct; or, (ii) undone the
obligation due to the Sections Ten and Eleven of the present Contract.
6.3.
The
obligations included in this Section Six and the Declarations and Warranties
will subsist until the end of this Contract, staying in force until the end
of
the prescription period and lapsing of each one of the respective obligations
or
in up to 5 (five) years counted from the Closing Date, what happen last.
SECTION
SEVEN
INTERIM
ADMINISTRATION
7.1.
Until the Closing Date or the end of this Contract, the SALERS guarantee that
the OURO
VERDE and Sidma administration they were and will be accomplished in a
responsible way and maintaining the normal course of the activities of the
company, not increasing OURO VERDE debts (except in the approved measure by
the
BUYER) and executing all of the obligations of the normal course of the
companies, including to honor the debts expirations and taxes in the expiration
dates, by Extraordinary Dispositions of Assets.
7.2.
Until the Closing Date or the end of this Contract, OURO VERDE, or Sidma (as
applicable), won't distribute nor will commit themselves to distribute, and
the
SALERS won't practice any act nor will orient OURO VERDE or Sidma to distribute
or will assume any commitment to distribute, give up or burden, direct or
indirectly, any of their assets, resources, besides available funds, at any
title, of OURO VERDE or Sidma, to the own SALERS, their related parties or
third
parties, except by Extraordinary Disposition of Assets.
SECTION
EIGHT
PERIOD
AND RESCISSION
8.1.
This
Contract comes becomes effective in this date, and it will stay in full force
and effect until the date in that happen first any of the following events
(the
" Duration Period "): (i) the effectiveness of the operation here included
in
the Closing Date or (ii) the non execution in a satisfactory way, at the BUYER
criteria of the Closing Conditions until April 09, 2007.
8.2.
The
SALERS commit themselves to endeavor their best efforts so that all of the
Closing Conditions are accomplished in the smallest period reasonably
practicable.
SECTION
NINE
EXCLUSIVENESS,
NON-COMPETITION
9.1.
The
SALERS, during the Validity Period, agree in negotiate in exclusiveness
character with the BUYER the Assets sale (whole or partly) or the Shares, and
they commit to not celebrate any contract relative to the Assets, not to issue
any new shares of OURO VERDE or Sidma, neither to alter the current corporate
composition of OURO VERDE or Sidma, not to transfer any share that hold from
OURO VERDE or that will hold Sidma, not allowing the constitution of any duty
on
the shares of OURO VERDE or over the Shares, except those included in this
Contract. When the Closing Date, and in consideration to the Acquisition Price,
each SALER commits, without having the need of any additional documentation,
to
abstain, direct or indirectly, of competing with OURO VERDE and/or Sidma, or
with any of their related parties, in any form, for the period of five years
to
count from the Closing Date, in the markets explored by OURO VERDE, in this
date. Are excepted of the non competition obligation now agreed the businesses
driven by SHARE HOLDERS that are placed out of a ray of 100
km
(one hundred kilometers) of OURO VERDE or Sidma facilities, except for the
liquor production activities by the company FJJ partners, which have rural
property inside this perimeter.
SECTION
TEN
CONFIDENCIALITY
10.1.
Each Party should maintain secrecy on all of the information obtained from
the
other Party in relation to the present Contract that are not of public
knowledge, don't have been independently known or developed, that has not been
obtained from third parties or that are not of public knowledge because of
the
Party fault that has received it (jointly the "Confidential Information").
The
Confidential Information (that can be oral, written or magnetic, designated
or
not as "confidential", and that includes contact information and information
regarding structures, business methods or financial organization) will only
be
able to be used by the receiving Party in the effectiveness of the transactions
included in this Contract and for any other purpose. In the hypothesis of this
Contract rescission, all of the documents (including the copies) obtained
because of this Contract by one Party should be returned to the other pertinent
Party, however, the confidentiality obligations and limitation to its use will
remain in force for the period of two years after the rescission date. Each
Party commits itself not to publish and maintain in secrecy the terms and
conditions of this Contract, being included, but if not limited to the below
compensation to be paid, except if the disclosure of those information is
demonstrated obligatory for the purchase and sale consummation included in
this
Contract, demanded by any government authority, applicable law or Stock Exchange
regulation to which the Party is submitted, or if it obtains the consent of
all
the other listed Parties. In the case of this clause obligations noncompliance
by one of the Parties, the faulty Party should compensate the other for losses
and damages.
SECTION
ELEVEN
FINAL
DISPOSITIONS
11.1.
The
Parties, 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 at any time,
assuming an obligation, to accomplish all of the necessary act sand formalities
for the full and perfect formalization of the Shares sale now contracted,
especially those related to the Closing Conditions performance, besides in
front
of all the competent organs, signing contractual alterations and any other
documents that are necessary for such.
11.2.
The
present Contract is signed in an irrevocable form and irrevocable, obliging
the
parties and their successors at any title.
11.3.
The
present Contract cannot be added or altered without the approval of all the
parties, in writing, and, except in the cases expressly foreseen in this
Contract, none of the Parties can give up or transfer any of their rights and
obligations originating from this
Contract, without the other Parties consent.
11.4.
The
invalidity, inefficacy or unfeasibility of any of the dispositions contained
in
this Contract, won't invalidate or will turn inoperative or unfeasible any
of
the other dispositions of the present Contract, which will continue in full
force. The Parties should negotiate the necessary measures to cure such
dispositions of eventual existent addictions.
11.5.
All
and any communications or notifications regarding the present instrument should
be made in writing and sent to the Parties
by
registered letter with return warning, or by telefax for the addresses below
discriminated:
SALERS:
The
communications should be sent to all the below addresses:
(a)
FJJ
EMPREENDIMENTOS E PARTICIPAÇÕES LTDA..
At.:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bernardo
▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇/▇▇
CEP
19.900-300
Fax:
(▇▇)
▇▇▇▇ ▇▇▇▇
(b)
NET
OIL INTERMEDIAÇÃO DE NEGÓCIOS LTDA..
At.:
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, no. 33, 7º. Andar
CEP
▇▇▇▇▇-▇▇▇ - Assis/SP
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
(c)
OURO
VERDE AÇÚCAR E ÁLCOOL LTDA.
At.:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Rodovia
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, km. 04, sala 02
CEP
18990-000 - Canitar, São Paulo
Fax
(▇▇)
▇▇▇▇ ▇▇▇▇
BUYER:
The
communications should be sent to all the below addresses:
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇▇▇ - 04551-060 São Paulo/SP
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
| c.c. |
MHMK
- Sociedade de Advogados
|
At.
▇▇▇▇▇
▇▇▇ ▇▇▇▇
Av.
Brigadeiro ▇▇▇▇▇ ▇▇▇▇, 1461, 12 andar
Fax
(▇▇)
▇▇▇▇-▇▇▇▇
11.6.
The
present Contract is governed by the laws of the Federal Republic of Brazil
and
any claim or I conflict originating from this Summary should be exclusively
solved before the District Forum of the City of São Paulo, Brazil.
And
therefore, for being fair and contracted, the parties
sign the
present instrument in 04 (four) copies, of equal form and content, in the
presence of the two below witness.
São
Paulo, March 14, 2007.
SELLERS:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FFJ
Empreendimentos e Participações Ltda.
p.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Intermediação de Negócios Ltda.
▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ouro
Verde Açúcar e Álcool Ltda.
p.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ e
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
|
|
BUYER:
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
COMANCHE
do Brasil Participações Ltda.
p.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Witness:
1.
______________________________
Name:
ID:
|
2._____________________________
Name:
ID:
|
List
of
the ANNEX to the Contract:
ANNEX
A:
"Fixed
Assets"
ANNEX
B:
Debts with COMANCHE: "Contracts A, B, C, D, AND, F and G"
ANNEX
3.1. (ii): " Remaining Debts of Ouro Verde"
ANNEX
5.1
(g): "Operational Capacity"