Exhibit 4.05
PROTOCOL AND JUSTIFICATION OF THE OPERATION OF INCORPORATION OF 52114
PARTICIPACOES S.A. BY COPENE - PETROQUIMICA DO NORDESTE S.A.
Made by and between
COPENE - PETROQUIMICA DO NORDESTE S.A., a company with headquarters at Xxx Xxxxx
x.x 0.000, xxxx xx Xxxxxxxx, xxxxx xx Xxxxx, enrolled at the CNPJ/MF under #
42.150.391/0001-70, NIRE # 00.000.000.000, herein represented according to its
By-laws, hereinafter simply referred to as "INCORPORATOR";
and
52114 PARTICIPACOES S.A., a company with headquarters at Xxx xx Xxxxxxx x.x 00,
0x xxxxx (part), in the city and state of Rio de Janeiro, enrolled at the
CNPJ/MF under # 03.987.071/0001-18, NIRE # 00.000.000.000, herein represented
according to its By-laws, hereinafter simply referred to as "INCORPORATED";
INCORPORATOR and INCORPORATED are jointly referred to as "PARTIES",
and also
PRONOR PETROQUIMICA S.A., a joint stock company with headquarters in the city of
Salvador, state of Bahia, at Xxx Xxxxxxxxxx, x.x 0000, part, enrolled at the
CNPJ/MF under # 13.552.070/0001-02, herein represented by its Director, Xxxxx
Xxxx Xxxxxx Xxxxxx, Brazilian, single, economist, bearer of the identity card
(RG) # 08146034-16 SSP/BA, enrolled at the CPF/MF under # 000.000.000-00, and
Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxx, Brazilian, married, administrator, bearer of the
identity card (RG) # 07.637129-3, enrolled at the CPF/MF under # 000.000.000-00,
hereinafter simply referred to as "PRONOR";
with the purpose of promoting the incorporation into an already existing
company, according to articles 224 and 225 of Law # 6.404 dated December 15,
1976.
Whereas:
(i) Groups Odebrecht and Xxxxxxx won the bid of the so-called Economico
S.A. Empreendimentos Assets, implemented on July 25, 2001, thus
starting to hold the control of Nordeste Quimica S.A. - Norquisa,
which, in its turn, controls the INCORPORATOR;
(ii) On July 31, 2001, Groups Odebrecht and Xxxxxxx disclosed their
intention to integrate to the INCORPORATOR certain second generation
assets with a view to obtain relevant synergies that the new scale can
provide and, simultaneously, eliminate prospective conflicts of
corporate interest;
(iii)The INCORPORATED is a holding company that holds, either directly or
indirectly, a relevant stockholding in the "Chemical and Petrochemical
Assets of Group Xxxxxxx", which are comprised of the following
investment: (a) 95,48% of the voting capital and 92,29% of the total
capital of NITROCARBONO S.A., a company whose main activity is the
production of caprolactam (CPL);
(iv) According to the terms of the "Memoranda of Understanding for the
Execution of Agreement of COPENE Shareholders" entered into between
the Groups Odebrecht and Xxxxxxx, on the one hand, and Petrobras
Quimica S.A. - Petroquisa ("Petroquisa"), Petros - Fundacao Petrobras
de Seguridade Social ("Petros") and Previ - Caixa de Previdencia dos
Funcionarios do Banco do Brasil ("Previ"), as relevant minority
shareholders of the INCORPORATOR, on the other hand, the process of
evaluation of the INCORPORATED and INCORPORATOR, for the purposes of
determining the respective exchange ratio, was prepared, according to
the terms of art. 8th of Law 6404/76, by an independent appraiser
chosen from a list of five first class banks appointed by Xxxxxxxxxx,
Xxxxxx and Xxxxx. This way, the independent appraiser chosen according
to this system was Credit Lyonnais Securities (USA) Inc. ("Credit
Lyonnais"), which started, on October 29, 2001, the works of
evaluation with the support of consultants experienced in the market
of petrochemicals, law firms (legal and tax aspects) and also
industrial and environmental consultants; and
(v) In this context, the evaluations of the INCORPORATED and also of the
INCORPORATOR, for the purposes of determining the shares exchange
ratio, were conducted by Credit Lyonnais based on its respective
economic values verified according to the methodology of discounted
cash flow. The reference date of the evaluations was May 31, 2002 and
the period of projection of the cash flow was from 2002 to 2011, the
results being validated by the comparison with multiples of market of
other national and international companies of similar features;
The managements of the PARTIES hereby propose the incorporation of the
INCORPORATED by the INCORPORATOR by signing this Protocol and Justification of
the Incorporation ("Protocol") whit the purpose of establishing, according to
articles 224 and 225 of Law # 6.404 dated December 15, 1976, the following terms
and conditions:
1. PURPOSE OF THE OPERATION. INTEREST OF THE PARTIES IN ITS ACCOMPLISHMENT
1.1 The purpose of the operation proposed in this Protocol is to reach the
provisions of WHEREAS of this Protocol in a way to provide all the PARTIES with
(a) gains of synergy arising out of the corporate integration of second
generation chemical and petrochemical companies with the center of raw
materials, i.e., the INCORPORATOR; and (b) alignment of the interests of the
shareholders of the INCORPORATOR and INCORPORATED.
2. INCORPORATION BASES
2.1 The INCORPORATOR shall perform the incorporation of the INCORPORATED and the
accounting net assets of the latter shall be transferred to the equity of the
INCORPORATOR, which shall succeed it according to law (universal descent)
("Incorporation").
2.2 The balances of credit and debit accounts of the INCORPORATED shall be
transferred to the accounting books of the INCORPORATOR, paying attention to the
proper adaptations.
2.3 The evaluation of the INCORPORATED, for the purposes of the respective
accounting entries into the INCORPORATOR, was carried out at book value by the
specialized company mentioned
in the following item 3.1, on the reference date established in the following
item 3.3, based on the criteria foreseen in Law # 6.404 dated December 15, 1976,
for the elaboration of financial statements.
2.4 The assets, rights and obligations of the INCORPORATED to be transferred to
the INCORPORATOR are those described in details in the evaluation report, at
book value, of the net assets of the INCORPORATED to be transferred to the
INCORPORATOR.
2.5 The INCORPORATOR's management shall be in charge of practicing all acts
necessary to implement the Incorporation, and all the costs and expenses related
to said implementation shall run on its account.
2.6 The INCORPORATED shall be dissolved in full right.
3. EVALUATION OF THE EQUITY OF THE INCORPORATED AND
REFERENCE DATE OF THE EVALUATION
3.1 The indication and appointment of the specialized company
PricewaterhouseCoopers Auditores Independentes, a civil company with
headquarters in the city of Sao Paulo at Av. Xxxxxxxxx Xxxxxxxxx, n.o 1.700,
from the 7th to the 11th floors and from the 13th to the 20th floors, Torre
Torino, with branch in the city of Salvador at Xxx Xxxxxx Xxxxxx, x.x 000, 0x
xxxxx, secondarily registered at the Regional Board of Accountancy of the State
of Bahia under # CRC 2SP000160/O-5 "S" BA and enrolled at the Tax Roll of Legal
Entities of the Treasury Department under # 61.562.112/0004-73, with articles of
Incorporation filed at the 4th Registry of Documents of Sao Paulo, SP, on
September 17, 1956, and further amendments registered at the 2nd Registry of
Documents of Sao Paulo, SP, the last of them being filed (microfilm) under #
68.444 on April 15, 2002, represented by its partner, Xx. Xxxxx Xxxxxxx xx
Xxxxxx e Xxxx, Brazilian, married, accountant, bearer of the identity card (RG)
# 16.951.877-SSP/SP, enrolled at the CPF under # 000.000.000-00 and at the
Regional Council of Accountancy of the State of Bahia under # CRC 1SP153070/O-3
"S" BA, domiciled in the city of Salvador, Xxx Xxxxxx Xxxxxx, x.x 000, 0x xxxxx,
as the person in charge of preparing the accounting evaluation report regarding
the net assets of the INCORPORATED to be transferred to the INCORPORATOR
("Accounting Evaluation Report"), shall be ratified by the Special General
Meeting of the INCORPORATOR and INCORPORATED, under the terms of article 227,
ss. 1st of Law # 6.404 dated December 15, 1976.
3.2 PricewaterhouseCoopers Auditores Independentes is a company specialized in
accounting evaluations and its experts, at the PARTIES' managements request,
have proceeded to (i) evaluate the equity of the INCORPORATED at the book value,
based on the elements appearing on the Balance Sheets of the INCORPORATED
prepared on July 1st, 2002, being that the investment in Nitrocarbono S.A. was
audited with the reference date May 31, 2002 ("Reference Date of
Incorporation"), the results realized by the Incorporation being already
calculated, thus constituting the value of the net assets to be transferred to
the INCORPORATOR, and (ii) elaborate the Accounting Evaluation Report, which is
the Exhibit 3.2 attached to this Protocol, the values being subject to previous
analysis and approval of the shareholders of the INCORPORATOR, according to the
law.
4. FULL AMOUNT OF THE NET ASSETS TO BE INCORPORATED
4.1 Based on the Accounting Evaluation Report and according to the provisions of
the following clause 5.1, the value of the accounting net assets of the
INCORPORATED to be transferred to the INCORPORATOR is of R$ 60.913.435,88.
5. TREATMENT OF EQUITY VARIATIONS UNTIL THE INCORPORATION DATE
5.1 The equity variations verified between the Reference Date of the
Incorporation and the effective incorporation, with exclusion of the results
realized by the very Incorporation, shall be appropriated by the INCORPORATOR,
being transferred to its accounting books, with the necessary changes being
made.
6. DISTRIBUTION OF THE SHARES RESULTING FROM THE INCORPORATION -
EXCHANGE RATIO
6.1 As a result of the Incorporation, the shareholders of the INCORPORATED shall
receive shares of the INCORPORATOR at the proportions specified below. The ratio
of exchange of shares of the INCORPORATED for shares of the INCORPORATOR was
established based on the economic values of each one of the PARTIES appearing in
the Economic Evaluation Report referred to in the following item 6.4:
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Company Current number of Economic value of Economic value (in R$) "Standard" lot Exchange
shares issued the company (in R$) per "standard" lot of of shares ratio(*)
shares
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INCORPORATOR(+) 1.737.796.398 1.694.682.729,04 975,19 1.000 -
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INCORPORATED 135.608.491 117.940.845,14 869,72 1.000 0,891841
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(+) Amount of shares of the INCORPORATOR, not considering the 54.620.037 shares
on treasury.
(*) Quantity of shares of the INCORPORATOR that shall be received per each share
held in the INCORPORATED.
6.2 The economic values of the INCORPORATOR and INCORPORATED used as basis of
the exchange ratio established in the Economic Evaluation Report, as defined
below, include the value attributed to the passive contingencies of the
companies involved and of the Chemical and Petrochemical Assets of Group PRONOR,
as appearing in their respective financial statements and/or indicated briefly
in an exhibit to the Economic Evaluation Report, weighted according to the
probabilities that the considered contingencies might be incurred, according to
the opinion of legal consultants hired for this purpose and of JP Meio Ambiente,
in respect to the contingencies of environmental nature. For conservatism
reasons, active superveniences of the INCORPORATED, of the Chemical and
Petrochemical Assets of Group Xxxxxxx and of the INCORPORATOR were not
considered for the purposes of defining their respective economic values.
6.2.1 PRONOR as controller of the "Chemical and Petrochemical Assets Xxxxxxx",
declares that the values of the passive contingencies of the INCORPORATED and of
the companies controlled, either directly or indirectly, by the INCORPORATED,
identified in the exhibit to the Economic Evaluation Report (as defined below),
are reflected in the audited financial statements of the INCORPORATED, when
applicable according to the accounting principles generally accepted in Brazil.
6.3 The shareholder of the INCORPORATED shall not exercise the right of recess
in the Incorporation.
6.4 At the meeting of the Managing Board of the INCORPORATOR held on October 31,
2001, the Board of Directors ratified the hiring of Credit Lyonnais, with office
at 0000 Xxxxxx xx xxx Xxxxxxxx, as the investment bank in charge of performing
(i) the economic evaluation of the PARTIES for the purposes mentioned in the
above item 6.1 and (ii) the elaboration of the Economic Evaluation Report
constituting exhibit 6.4 attached to this Protocol, and said appointment is
subject to ratification by the Special General Meeting of the INCORPORATOR and
the values, appearing in the Economic Evaluation Report, subject to previous
analysis and approval by the shareholders of the INCORPORATOR, according to the
law.
7. INCORPORATOR'S CAPITAL INCREASE
7.1 As a result of the Incorporation, the corporate capital of the INCORPORATOR
shall increase from the current R$ 1.201.589.666,71 to R$ 1.262.423.102,59,
therefore an increase of R$ 60.913.435,88. The increase of the corporate capital
of the INCORPORATOR will be made upon the issue of 120.941.326 new shares, being
43.634.909 common shares and 77.306.417 class A preferred shares, with the same
rights and advantages attributed according to the by-laws of the INCORPORATOR.
7.2 The Incorporation of the INCORPORATED shall occur at the same General
Meeting that shall approve the incorporation, by the INCORPORATOR, of OPP
PRODUTOS PETROQUIMICOS S.A., a holding company that holds a relevant
stockholding in the "Chemical and Petrochemical Assets of Group Odebrecht". In
this context, the corporate capital of the INCORPORATOR, by the end of the
process of Incorporation, is estimated to be R$ 1.845.398.533,72 divided into
1.226.091.148 common shares and 2.172.222.076 preferred shares, being
2.160.764.336 class A preferred shares and 11.457.740 class B preferred shares.
8. INDEMNIFICATION
8.1 PRONOR, already qualified, herein irrevocably commits itself to indemnify,
defend and hold INCORPORATOR harmless in respect to any and all loss, damage,
cost, fine, penalty or expense (including interests, fine, monetary correction,
lawyer's fees and legal costs)("Loss") that might be incurred by the
INCORPORATOR or by any companies controlled, either directly or indirectly, by
the INCORPORATOR, as a result of any and all obligation, either contingent or
absolute, arising out of the INCORPORATED and/or its controlled companies,
either direct or indirect, including, but not limited to labor, tax,
environmental, social security, civil, insurance and/or financial nature ones
resulting from agreements executed, acts practices, facts or omissions occurred
before and/or on the date of approval of the Incorporation by the shareholders
of the INCORPORATOR at the General Meeting referred to in the above Clause 7.2
("SGM Date"), observing that PRONOR's obligation to indemnify the INCORPORATOR
does not include the obligations appearing in the Economic Evaluation Report
and/or its respective exhibits of legal and environmental audit, provided, in
any case, the provisions of the following clauses 8.2 and 8.2.1 and 8.2.2 are
observed.
8.1.1 The indemnification referred to in the above Clause 8.1, subject to the
provisions of clauses 8.2 and 8.2.1, shall be paid by PRONOR to the INCORPORATOR
in cash, within the term of 30 (thirty) days from the date on which the
INCORPORATOR or its direct or indirect controlled companies, including those
arising out of the INCORPORATED, as the case might be, effectively incur(s) in
Loss or make(s) the disbursement related to the respective Loss, whatever occurs
first. The indemnifications foreseen herein will be added by all taxes, costs
and expenses eventually falling or incurred in a way that the equity and value
of the INCORPORATOR are reconciled as if the Loss had not been incurred.
8.1.2 Every semester, the INCORPORATOR shall make available to its shareholders
represented in the Managing Board and to the members of the Managing Board a
report informing (i) the credits received in view of the active superveniences
of the INCORPORATED and their controlled companies, either direct or indirect,
transferred to the INCORPORATOR and (ii) the Losses incurred and
indemnifications paid under the terms of this Clause, it being right that
shareholders holding, jointly or individually, at least 5% (five per cent) of
the voting capital of the INCORPORATOR, as well as the shareholder PRONOR,
irrespective of its direct or indirect interest in the voting capital of the
INCORPORATOR, shall be entitled to, during the 30 (thirty) days following the
delivery of said report, request and receive, from the INCORPORATOR, information
about the defense and/or questions about any prospective Losses, as well as the
documentation related to Losses incurred and to the respective indemnification.
8.2 PRONOR's obligation to indemnify set forth in the above Clause 8.1 is
subject to the following limitations and PRONOR is in charge of indemnifying the
INCORPORATOR for Losses: (i) at a value proportional to the stockholding of the
INCORPORATED in the company it controls, either directly or indirectly, if the
Loss is incurred by this company; (ii) whose individual value is equal to or
higher than R$ 25.000.000,00 (twenty-five million reais), annually corrected by
the IGP-M, provided that, if there are multiple Losses related to or arising out
of one or a series of occurrences or events of the same nature, the value of the
Losses resulting from each one of these events shall be added for the purposes
of determining if they meet the limit established in this item (ii); and (iii)
that are claimed, filed or collected from the INCORPORATOR and/or companies it
controls, either directly or indirectly, by whom it may concern, by any means
admitted in court or thereout, during the term of 5 (five) years from the SGM
Date.
8.2.1 PRONOR's obligation to indemnify the INCORPORATOR under the terms of this
Clause shall be reduced by the value of the "Credits Used - Active
Superveniences" existing on the date on which the Loss is incurred, up to the
limit of this value. For the purposes foreseen herein, "Credits Used - Active
Superveniences" mean effective credits already used by the INCORPORATOR and/or
its controlled companies, either direct or indirect, net of income tax,
contributions and other deductions incurred on account of or with a view to
their reception or acknowledgement, related to facts or acts occurred until the
SGM Date, in any case arising out of the active superveniences of the
INCORPORATED or its controlled companies, either direct or indirect, expressly
related in the Exhibit - Economic Evaluation Report, and, also, whose
constitution or acknowledgement has arisen out of a final legal decision
transited in rem judicatam. The partial or total liquidation of any PRONOR
obligation of indemnifying the INCORPORATOR upon the deduction by Credits Used -
Active Superveniences, under the terms of this Clause, shall be effected under
resolution, to the extent that, if an action for rescission is proposed in
respect to any of the Credits Used - Active Superveniences used and this action
manages to deconstitute it by any means and at any time, PRONOR shall indemnify
the INCORPORATOR in full for the Loss payable, whose original value shall be
added by the variation of the Interbanking Deposit Certificates - CDI from the
date on which the Loss has been incurred until the date of the effective
indemnification.
8.2.2 If the value of the Credits Used - Active Superveniences is higher than
the amount of the Loss, PRONOR shall have a creditor balance deductible from its
eventual obligation of indemnifying the INCORPORATOR, corresponding to the
difference between (i) the Credits Used - Active Superveniences and (ii) the
Loss, being that said creditor balance shall be used exclusively for the
purposes of deducting eventual Losses verified during the life of this Clause 8.
After the end of the indemnification term foreseen in this Clause 8 and the
liquidation of the Losses, an eventual creditor balance shall be automatically
extinct for all legal effects.
9. OTHER PROVISIONS
9.1 In the context of the Incorporation of 52114 into the INCORPORATOR, in case
of indirect alienation of the stockholding of Nitrocarbono S.A., an open company
controlled by 52114, the INCORPORATOR shall respect and comply with the
provisions of article 254-A of Law # 6.404/76, amended by Law # 10.303/2001, and
Instruction CVM # 361/2002.
10. CONCLUSION
10.1 Messrs. Shareholders of the INCORPORATED and INCORPORATOR, these are the
norms and procedures that, according to the law, we have formulated in order to
rule this operation of incorporation, which the respective Boards of Directors
consider as being of corporate interest.
Camacari, July 26, 2002.
COPENE - PETROQUIMICA DO NORDESTE S.A.
(signed: illegible)
(signed: illegible)
52114 PARTICIPACOES S.A.
(signed: illegible)
(signed: illegible)
PRONOR PETROQUIMICA S.A.
(signed: illegible)
(signed: illegible)
Seal: BOARD OF TRADE OF THE STATE OF BAHIA - JUCEB
I hereby certify the record on 08/20/2002, under # 96392385, protocol
02/177685-7 Company: 29 3 0000693 9
BRASKEM S/A
(signed: illegible), Xxxxxxx Xxxxx Xxxxx, General Secretary
Stamp: JUCEB
It is according to its original.
(signed: illegible), clerk
On 08/16/02