ULTRAPAR PARTICIPAÇÕES S.A. ULTRA S.A.—PARTICIPAÇÕES AVARÉ PARTICIPAÇÕES S.A. and IGEL PARTICIPAÇÕES S.A. CONTROLLING-SHAREHOLDERS’ AGREEMENT
EXHIBIT 2.1
ULTRAPAR PARTICIPAÇÕES S.A.
ULTRA S.A.—PARTICIPAÇÕES
AVARÉ PARTICIPAÇÕES S.A. and
XXXX PARTICIPAÇÕES S.A.
CONTROLLING-SHAREHOLDERS’ AGREEMENT
Parties to the Agreement:
I—ULTRA S.A.—PARTICIPAÇÕES (a “ULTRA S.A.”), a company having its principal place of business at Xx. Xxxxxxxxxx Xxxx Xxxxxxx, 0000 – 9th floor, in the City and State of São Paulo, enrolled in the National Registry of Legal Entities CNPJ under No. 54.041.439/0001-91, in this act represented by its undersigned Directors and GIPÓIA PARTICIPAÇÕES S/C. LTDA. (“GIPÓIA”), a company having its principal place of business at Xx. Xxxxxxxxxx Xxxx Xxxxxxx, 0000 – 9th floor, in the City and State of São Paulo, enrolled in the National Registry of Legal Entities CNPJ under No. 61.604.351/0001-04, both companies in this act represented by their respective Directors, holders of twenty-six billion three hundred and ninety million two hundred and fifty-one thousand two hundred and fifty (26,390,251,250) common shares of ULTRAPAR PARTICIPAÇÕES S.A. (“ULTRAPAR”), a company having its principal place of business at Xx. Xxxxxxxxxx Xxxx Xxxxxxx, 0000 – 9th floor, in the City and State of São Paulo, enrolled in the National Registry of Legal Entities CNPJ under No. 33.256.439/0001-39, said shareholding interest ensuring their direct control of this company;
II—AVARÉ PARTICIPAÇÕES S.A. (“AVARÉ”), a company having its principal place of business at Xx. Xxxxxxxxxx Xxxx Xxxxxxx, 0000 – 9th floor, in the City and State of São Paulo, enrolled in the National Registry of Legal Entities CNPJ under No. 55.204.424/0001-60, in this act represented by its undersigned Directors; XXXX PARTICIPAÇÕES S.A. (“XXXX”), company having its principal place of business at Xx. Xxxxxxxxxx Xxxx Xxxxxxx, 0000 – 9th floor, in the City and State of São Paulo, enrolled in the National Registry of Legal Entities CNPJ under No. 55.203.731/0001-26, in this act represented by its undersigned Directors; PAULO XXXXXXXXX XXXXXX XXXXX, Brazilian, married, engineer, bearer of Identity Card RG No. 4.554.607/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Xxx Xxxxxx Xxxx, 000, in the City and State of São Paulo and XXX XXXXX LEVY XXXXXXX XXXX, Brazilian, widow, businessperson, bearer of Identity Card RG No. 2.821.401/SSP-SP and
2.1.1
of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Xxx Xxxx Xxxxxxxx, 00 – 17th floor, in the City and State of São Paulo, holders of sixty-four million, nine hundred and one thousand and seven (64,901,007) common shares of ULTRA S.A., said shareholding interest ensuring their indirect control of ULTRAPAR;
III—PAULO XXXXXXXXX XXXXXX XXXXX, already identified above, XXX XXXXX XXXX XXXXXXX XXXX, already identified above, XXXXXXX XXXX, Brazilian, judicially separated, businessperson, bearer of Identity Card RG No. 2.992.103/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Xxx Xxxxxx Xxxxxx, 000, 00xx xxxxx, Xxxx de Pinheiros, in the City and State of São Paulo, XXXXX XXXX DE XXXXXX XXXXXXX, Brazilian, married, businessperson, bearer of Identity Card RG No. 3.005.592/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, herein assisted by her husband, XXXXX XX XXXXXX XXXXXXX XXXXX, Brazilian, engineer, bearer of Identity Card RG No. 3.045.977/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, both resident and domiciled at Rua General Xxxx Xxxxxxx, 743 – 2nd floor, in the City and State of São Paulo, XXXXXX XXXX JOPPERT, Brazilian, married, businessperson, bearer of Identity Card RG No. 2.987.353/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, herein assisted by her husband, XXXXXXX XXXX JOPPERT, Brazilian, cattle-raising specialist, bearer of Identity Card RG No. 3.410.166/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, both resident and domiciled at Xxx Xxxxxxxxx, 00, in the City and State of São Paulo, XXXXX XXXX, Brazilian, single, businessperson, bearer of Identity Card RG No. 16.473.997-X/SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Xxx Xxxx Xxxxxxxx, 00 – 17th floor, in the City and State of São Paulo, XXXXX XX XXXXXX ANDRADE FILHO, already qualified above, XXXX XXXXXX XXXXXXXXX XX XXXXXXX, Brazilian, married, engineer, bearer of Identity Card RG No. 300.310/ SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Xxx Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxx, 0000, in the City and State of São Paulo, XXXXX XXXXXXXXXXX, Brazilian, married, engineer, bearer of Identity Card RG No. 4.144.579/ SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Xxx Xxxxxxxxxxx Xxxxxx Xxxxx, 000, in the City and State of São Paulo, XXXXX WONGTSCHOWSKI, Brazilian, married, engineer chemist, bearer of Identity Card RG No. 3.091.522/ SSP-SP and of Individual Taxpayers’ Registry CPF No. 000.000.000-00, resident and domiciled at Rua Mercedes, 1065, in the City and State of São Paulo and XXXXXXX PARTICIPAÇÕES LTDA., a company having its principal place of business at Xxx Xxxxxxxx xx Xxxxxx, 000, xxxxx 000, xx the City and State of Rio de Janeiro, enrolled in the National Registry of Legal Entities CNPJ under No. 33.363.896/0001-22, in this act represented pursuant to its articles of association, all of them being the totality of XXXX and AVARÉ shareholders;
2.1.2
WHEREAS,
| A) | The conglomerate known as “Ultra Group” is formed by several operating companies, controlled by the “holding” ULTRAPAR, wherein ULTRA S.A. holds, both directly and through its subsidiary GIPÓIA, 69.48 % of its voting capital; |
| B) | ULTRA S.A., in turn, has its voting capital distributed between AVARÉ and XXXX, each of them being the holder of 49.50% of the common shares, whereas the remaining 1% is distributed as follows: (i) 0.20% being an absolute ownership of XXX XXXXX LEVY XXXXXXX XXXX; and (ii) 0.80% being an ownership to terminate on 16 December 2004 of PAULO XXXXXXXXX XXXXXX XXXXX, trustee in a trust wherein the beneficiaries, in equal parts, are the four children of Xxxx Xxxx, to wit, XXXXXXX XXXX, XXXXX XXXX DE XXXXXX XXXXXXX, XXXXXX XXXX JOPPERT and XXXXX XXXX; |
| C) | AVARÉ and XXXX shall have a determinate-term life, ending on 16 December 2004, on which date they will be compulsorily dissolved and liquidated, upon distribution of the shares in ULTRA S.A. to their shareholders; |
| D) | On 22 May 1997, the shareholders of AVARÉ and XXXX executed a Shareholders’ Agreement with immediate validity and effectiveness as of 16 December 2004 (whereupon they shall have a direct interest in ULTRA S.A. capital), wherein the shareholders mutually grant the right of first refusal in the purchase of ULTRA S.A. shares, in case of disposal of these shares; |
| E) | ULTRAPAR has recently made a public issuance of preferred shares, placed in Brazil and abroad, the latter through ADRs (American Depository Receipts) placed in the New York Stock Exchange. |
| F) | ULTRAPAR direct and indirect controllers intend to ensure an equitable treatment to the remaining shareholders of ULTRAPAR, without distinguishing between common and preferred shares, in the event of transfer of the company shareholding control; |
2.1.3
| G) | The appropriate means for said purposes to be ensured is through the execution of an agreement wherein the parties should provide that, the consummation of the transfer of ULTRAPAR shareholding control should depend on the suspensive condition that the acquirer shall make a public offering for the purchase of the shares held by ULTRAPAR minority shareholders, consisting of common and preferred shares of stock, and grant to the holders thereof an equitable treatment as defined in this Agreement. |
NOW, THEREFORE,
THE PARTIES DECIDE
to execute this
SHAREHOLDERS’ AGREEMENT
Section One
ULTRA S.A. and GIPÓIA undertake not to transfer ULTRAPAR direct control, upon disposal of the shares they hold therein, without the person acquiring the controlling interest therein undertaking, as a suspensive condition of the disposal, to make a public offering to ULTRAPAR minority shareholders, under the conditions stipulated in Section Four hereof.
Section Two
AVARÉ, XXXX, XXX XXXXX XXXX XXXXXXX XXXX and PAULO XXXXXXXXX XXXXXX XXXXX undertake not to transfer ULTRAPAR indirect control, upon disposal of the shares they hold in ULTRA S.A., without the person acquiring the control undertaking, as a suspensive condition of the disposal, to make a public offering to ULTRAPAR minority shareholders, under the conditions stipulated in Section Five hereof.
Section Three
The shareholders of AVARÉ and XXXX undertake not to transfer ULTRAPAR indirect control, upon disposal of the shares they hold in AVARÉ and XXXX, without the person acquiring the control undertaking, as a suspensive condition of the disposal, to make a public offering to ULTRAPAR minority shareholders, under the conditions stipulated in Section Five hereof.
2.1.4
Section Four
In the direct transfer of ULTRAPAR control by ULTRA S.A. and/or GIPÓIA, the offering shall be addressed to all minority shareholders of ULTRAPAR and:
| a) | the offering shall be for the purchase of a percentage of the common and preferred shares held by each minority shareholder of ULTRAPAR, to be acquired by the offeror, according to the following procedure: |
| (i) | the number of common shares acquired in the operation resulting in the shareholding control shall be added to the number of ULTRAPAR common shares already previously held by the acquirer, either directly or indirectly; |
| (ii) | the result of this addition will be divided by the number of ULTRAPAR common shares then held by ULTRA S.A., GIPÓIA and by the acquirer, either directly or indirectly. |
| b) | the price per share that shall prevail in the offering shall correspond to the weighed average of the prices paid in the acquisitions of ULTRAPAR common shares referred to below, adjusted in line with the General Market Price Index (IGPM) or any other index that may replace it, up to the month immediately prior to the public offering date: |
| (i) | price of the transaction resulting in the transfer of control; |
| (ii) | prices of the transactions of acquisition of ULTRAPAR common shares carried out by the person acquiring the control over the previous twelve (12) months. |
Section Five
The value of ULTRAPAR common shares, in the event of an indirect transfer of control, will be calculated by applying the same procedures provided for the direct transfer, after segregation of the net amount of the remaining assets of the company, except ULTRAPAR common shares. Said net amount shall be appraised by a qualified and fit firm specializing in appraisals.
2.1.5
Section Six
Transfers held within the same legal entity, it being understood as such those transfers held among the current holders of shares in AVARÉ, XXXX and ULTRA S.A., are free, and they are not subject to the offering obligation, even if they result or may result in changes or configuration of control in the hands of any or some of the current shareholders of said companies.
Paragraph One: For the effect of the provision in this Section, the concept of transfer within the same legal entity includes any transfer among the current shareholders and:
| (i) | their ascendants, descendants, spouses and heirs; |
| (ii) | holding companies in which the current shareholders own the majority of the voting capital. |
Paragraph Two: The validity of the Shareholders’ Agreement referred to in clause D of the recitals is hereby preserved, which Agreement shall be in effect simultaneously with this Agreement.
Section Seven
The validity of the operation of transfer of ULTRAPAR control by its direct and indirect controllers shall be equally conditional on the obligation of the acquirer to perform successive purchase offerings addressed to the minority shareholders, each time it shall acquire, either directly or indirectly, additional common shares of ULTRAPAR held by the current direct and indirect controllers, over the twenty-four (24) months subsequent to its gain of control. The condition herein set shall be included in the document which will formalize the operation and it shall satisfy the following requirements:
| (i) | Each offering price shall be identical to the price set in the latest acquisition, whereas in case it is an indirect acquisition the price shall be adjusted according to Section Five hereof; |
2.1.6
| (ii) | The proportion to be adopted in each offering shall be obtained by dividing the amount of ULTRAPAR common shares acquired directly or indirectly each time by the aggregate number of ULTRAPAR common shares then held by ULTRA S.A., GIPÓIA and the acquirer, either directly or indirectly. |
2.1.7
Section Eight
The public purchase offerings shall be presented by institutions registered with the São Paulo and New York Stock Exchanges, based on the regular practices prevailing in said agencies.
Section Nine
The obligation assumed by the parties hereto shall be registered according to the terms and for the effects of article 40 and the sole paragraph thereof of the Corporations Act:
| i) | in the books of the financial institution depositary of ULTRAPAR book-entry shares and annotated on the report of the deposit account supplied to shareholders; |
| ii) | in the book of registered shares of ULTRAPAR, ULTRA S.A., AVARÉ and XXXX; |
| iii) | in the articles of association of GIPÓIA. |
Section Ten
The obligations herein assumed by the parties hereto of not to transfer the direct or indirect control of ULTRAPAR, upon disposal of their respective interest in the company, without the suspensive condition of submitting an offering to purchase the shares of the minority shareholders of ULTRAPAR, are irrevocable and irreversible, and compliance therewith may be required from any party hereto and from any minority shareholder of ULTRAPAR.
Paragraph One: Any party hereto and any minority shareholders may file the lawsuit it may deem appropriate to prevent any nonperformance of the obligations of the parties hereto, or to enforce performance thereof.
Paragraph Two: This Shareholders’ Agreement shall be filed at the principal places of business of ULTRAPAR, ULTRA S.A., AVARÉ and XXXX, which undertake to perform it and not to allow the transfer of the disposed-of shares without evidence of performance of the suspensive condition of offering submission to the minority shareholders of ULTRAPAR, until the completion of the offering term and payment to the minority shareholders who may have accepted the offer. A similar suspensive condition shall prevail in all subsequent acquisitions referred to in Section Seven hereof.
2.1.8
Paragraph Three: The obligations undertaken by the parties hereto shall be subject to the provisions of Articles 1098 and 1099 of the Civil Code, related to stipulation in favor of third parties, to the extent as applicable.
2.1.9
Section Eleven
It is allowed to the signatories of this Agreement making up the shareholding control of ULTRA S.A. and ULTRAPAR to amend the Bylaws of said companies in order to introduce therein provisions ensuring the minority shareholders the treatment equivalent to that set forth herein, in which event this Agreement may be terminated in case the holders of preferred shares, assembled in a special shareholders’ meeting, consider said equivalence duly ensured.
Sole Paragraph – The special shareholders’ meeting can be called only by ULTRA S.A initiative, no less than thirty (30) days in advance. The signatories of this Agreement, holders of preferred shares, may participate in said meeting, without, however, taking part in the vote.
Section Twelve
This Agreement shall be binding on the parties, their heirs and successors for an indeterminate term, and termination hereof is expressly banned while the obligation to amend the Bylaws of ULTRA S.A. and ULTRAPAR provided for in Section Eleven hereof is not performed. After the Bylaws are duly amended this Agreement shall be extinguished, regardless of any further formality.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in six (6 ) counterparts before two (2) witnesses.
São Paulo, 22 March 2000.
Parties:
ULTRAPAR PARTICIPAÇÕES S.A.
ULTRA S.A.—PARTICIPAÇÕES
GIPÓIA PARTICIPAÇÕES S/C. LTDA.
(page before last of the Shareholders’ Agreement executed on 3/22/2000 by and between the Key Shareholders of Ultrapar Participações S.A., Ultra S.A.—Participações, Avaré Participações S.A. and Xxxx Particpações S.A.)
2.1.10
AVARÉ PARTICIPAÇÕES X.X.
XXXX PARTICIPAÇÕES S.A.
PAULO XXXXXXXXX XXXXXX XXXXX
XXX XXXXX XXXX XXXXXXX XXXX
XXXXXXX XXXX
XXXXX XXXX XX XXXXXX XXXXXXX
XXXXX DE XXXXXX XXXXXXX FILHO
XXXXXX XXXX XXXXXXX
XXXXXXX XXXX XXXXXXX
(last page of the Shareholders’ Agreement executed on 3/22/2000 by and between the Key Shareholders of Ultrapar Participações S.A., Ultra S.A.—Participações, Avaré Participações S.A. and Xxxx Particpações S.A.)
XXXXX XXXX
2.1.11
XXXX XXXXXX XXXXXXXXX DE XXXXXXX
XXXXX XXXXXXXXXXX
XXXXX WONGTSCHOWSKI
XXXXXXX PARTICIPAÇÕES LTDA.
2.1.12
