Exhibit 4.06
PROTOCOL AND JUSTIFICATION OF THE OPERATION OF INCORPORATION OF NITROCARBONO
S.A. BY BRASKEM S.A.
Made by and between
BRASKEM S.A., a company with headquarters at Xxx Xxxxx x.x 0.000, xxxx xx
Xxxxxxxx, xxxxx of Bahia, enrolled at the CNPJ/MF under # 42.150.391/0001-70,
herein represented according to its By-laws, hereinafter simply referred to as
"INCORPORATOR";
and
NITROCARBONO S.A., a company with headquarters at Xxx Xxxxxxxxxx x.x 0.000, xxxx
xx Xxxxxxxx, xxxxx of Bahia, enrolled at the CNPJ/MF under # 13.558.218/0001-08,
herein represented according to its By-laws, hereinafter simply referred to as
"INCORPORATED";
INCORPORATOR and INCORPORATED are jointly referred to as "PARTIES",
with the purpose of promoting the incorporation into an already existing
company, according to articles 224, 225 and 264 of Law # 6.404 dated December
15, 1976.
Whereas:
(i) The INCORPORATOR holds 49.957.106 common shares and 87.906.743 class A
preferred shares and 1.576 class B preferred shares issued by the
INCORPORATED, which shares represent 100% of the corporate capital
entitled to vote and 93,83% of the total capital of the INCORPORATED;
(ii) the operation of incorporation of the INCORPORATED by the INCORPORATOR
will represent gains of synergies to the PARTIES, result in the
simplification of the current structure by consolidating the
activities of the PARTIES in a single company, with consequent
reduction of financial, operational costs, rationalization of the
activities of the PARTIES; and
(iii) the reports on (a) accounting evaluation of the equity of the PARTIES,
and (b) evaluation, at market prices, of the equities of the PARTIES,
prepared and delivered by the specialized company, are according to
the applicable laws and regulations and to the operation of
incorporation this Protocol and Justification is about.
The Board of Directors of the PARTIES, in the best form of law, hereby proposes
the incorporation of the INCORPORATED by the INCORPORATOR by signing this
Protocol and Justification of the incorporation ("Protocol and Justification")
whit the purpose of establishing, according to articles 224, 225 and 264 of Law
# 6.404 dated December 15, 1976, as well as Instruction XXX # 000 dated December
3, 1999, and subject to the provisions of items 9.1 and 9.2, the following terms
and conditions related to said operation of incorporation.
1. INCORPORATION BASES
1.1 The INCORPORATOR will perform the incorporation of the INCORPORATED and the
equity of the latter will be transferred to the equity of the INCORPORATOR,
which will succeed it according to law (universal descent) ("Incorporation").
1.2 The evaluations of the equities of the INCORPORATED and INCORPORATOR, for
the purposes of the respective accounting entries into the INCORPORATOR,
determination of ratio of substitution of the shares of the INCORPORATED for
shares of the INCORPORATOR and calculation of the value of reimbursement of the
shares issued by the INCORPORATED, in case of eventual exercise of the right of
withdrawal the shareholders of the INCORPORATED are entitled to, were carried
out at book value by the specialized company mentioned in item 2.1, on the
reference date established in item 2.2, based on the criteria foreseen in Law #
6.404 dated December 15, 1976 and according to the criteria established in the
instruction CVM # 319/99 for the elaboration of financial statements.
1.3 The balances of credit and debit accounts of the INCORPORATED will be
transferred to the accounting books of the INCORPORATOR, paying attention to the
proper adaptations.
1.4 The assets, rights and obligations of the INCORPORATED comprising the equity
to be transferred to the INCORPORATOR are those described in details in the
evaluation report, at book value.
1.5 The INCORPORATOR's management will be in charge of practicing all acts
necessary to implement the Incorporation, and all the costs and expenses related
to said implementation will run on its account.
1.6 The INCORPORATED will be dissolved in full right.
2. EVALUATIONS AND REFERENCE DATE OF THE INCORPORATION
2.1 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 00xx xxxxxx, Xxxxx
Xxxxxx, with branch in the city of Salvador at Xxx Xxxxxx Xxxxxx, x.x 000, 0x
andar, 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 Melo, as the person in charge of preparing (i) the accounting
evaluation reports regarding the equities of the INCORPORATED and INCORPORATOR,
for the purposes of accounting entries of the INCORPORATOR, in order to
determine the ratio of substitution of the shares, as well as to the eventual
exercise of the right of withdrawal ("Accounting Evaluation Reports"), and (ii)
the evaluation reports of the equities of the PARTIES, according to the same
criteria, at market prices and on the same Reference Date of the Incorporation
("Reports on Evaluation at Market Prices"), under the terms of art. 264 and
respective ss.s of Law # 6.404, shall be ratified by the Special General Meeting
of the INCORPORATOR and INCORPORATED, under the terms and for the purposes of
article 227, ss. 1st of Law # 6.404 dated December 15, 1976.
2.2 PricewaterhouseCoopers Auditores Independentes is a company specialized in
evaluating companies of the size of the INCORPORATED and INCORPORATOR and, at
the PARTIES' management request, it
has proceeded to (i) evaluate the equities of the INCORPORATED and INCORPORATOR
at the book value, based on the elements appearing on the Balance Sheets of the
PARTIES prepared on December 31, 2002 ("Reference Date of Incorporation"), (ii)
evaluate the equities of the PARTIES according to the same criteria, at market
prices and on the same Reference Date, (iii) elaborate the Accounting Evaluation
Reports, which are the Exhibits A and B attached to this Protocol and
Justification, the values being subject to previous analysis and approval of the
shareholders of the PARTIES, according to the law, (iv) elaborate the Reports on
Evaluation at Market Prices, which are the Exhibits C and D attached to this
Protocol and Justification, the values being subject to previous analysis and
approval of the shareholders of the PARTIES, according to the law.
3. FULL AMOUNT OF THE EQUITY TO BE INCORPORATED
3.1 According to the accounting evaluation of the INCORPORATED, the book value
of the equity of the INCORPORATED to be transferred to the INCORPORATOR is of R$
604.288,85, provided the provisions of Clause 4 below are observed.
4. TREATMENT OF EQUITY VARIATIONS UNTIL THE INCORPORATION DATE
4.1 The equity variations verified from the Reference Date of the Incorporation
will be apportioned by the INCORPORATOR, being transferred to its accounting
books, and the necessary changes will be made, irrespective of the fact that the
INCORPORATOR may continue, provisionally, to conduct the operations on its
behalf until the formalization of all the records and obtaining of all the
authorizations demanded by the applicable legislation.
5. RATIO OF SUBSTITUTION OF THE SHARES
FOR THE PURPOSES OF INCORPORATION
5.1 As a result of the incorporation, the shareholders of the INCORPORATED will
receive, in substitution for their shares representing the corporate capital of
the INCORPORATED, shares issued by the INCORPORATOR, according to the following
ratio of substitution established based on the book values of the shares of the
PARTIES verified as provided for in the above item 2.1, appearing on the
Accounting Evaluation Reports.
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Company Current Book value of Book value Book Ratio of Ratio of "Standard"
number of the company (in (in R$) per value exchange exchange lot of
shares issued R$) "standard" (in R$) common preferred shares
lot of per shares shares
preferred "standard"
shares (++) lot of
common
shares
-------------------------------------------------------------------------------------------------------------------
INCORPORATOR (+) 3.398.313.224 1.871.636.903,02 550,75 550,75 - - 1.000
-------------------------------------------------------------------------------------------------------------------
INCORPORATED 146.932.713 604.288,86 4,11 4,11 0,007 0,007 1.000
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(+) Amount of shares of the INCORPORATOR, not considering the 53.007.864 shares
on treasury.
(++) Book value per "standard" lot of preferred shares, irrespective of their
class.
6. VERIFICATION OF THE RATIO OF SUBSTITUTION OF THE SHARES FOR THE PURPOSES OF
ART. 264 OF LAW # 6.404/76
6.1 In compliance with the provisions of said article 264 of Law # 6.404/76, the
table below shows the theoretical ration of substitution of common shares and
class A preferred shares issued by the INCORPORATED for, respectively, common
shares and class A preferred shares issued by the INCORPORATOR, established
based on the values of the equities of the PARTIES, evaluated according to the
same criteria, at market prices, on the Reference Date of the Incorporation, as
appearing on the Reports on Evaluation at Market Prices, exclusively for the
purposes of the comparison foreseen in said article of Law # 6.404/76.
--------------------------------------------------------------------------------------------------------------------
Company Current Book value of Book value Book Ratio of Ratio of "Standard"
number of the company (in (in R$) per value exchange exchange lot of
shares issued R$) "standard" (in R$) common preferred shares
lot of per shares shares
preferred "standard"
shares (++) lot of
common
shares
--------------------------------------------------------------------------------------------------------------------
INCORPORATOR (+) 3.398.313.224 4.647.165.000,00 1.367,49 1.367,49 - - 1.000
--------------------------------------------------------------------------------------------------------------------
INCORPORATED 146.932.713 75.891.375,74 516,50 516,50 0,378 0,378 1.000
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(+) Amount of shares of the INCORPORATOR, not considering the 53.007.864 shares
on treasury.
(++) Book value per "standard" lot of preferred shares, irrespective of their
class.
7. REIMBURSEMENT VALUE
7.1 The reimbursement value of the shares of the shareholders of the
INCORPORATED dissenting from the Incorporation was defined based on the
evaluation of the accounting equity of the INCORPORATED, under the terms of art.
45 of Law # 6.404/76, and is as follows:
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Book value of the INCORPORATED (in Book value per lot of 1.000 Book value per lot of 1.000
R$) common shares for the purposes of preferred shares for the purposes
reimbursement (in R$): of reimbursement (in R$)(+):
-----------------------------------------------------------------------------------------------------------
604.288,86 4,11 4,11
-----------------------------------------------------------------------------------------------------------
(++) Book value per "standard" lot of preferred shares, irrespective of their
class.
7.2 Under the terms of the provisions of art. 264, ss. 3rd of Law # 6.404/76,
the dissenting shareholders of the INCORPORATED wishing to exercise the right of
withdrawal because of the Incorporation may choose to receive the price of
reimbursement of their shares based on (i) their book value established in the
above item 7.1, under the terms of art. 45 of Law # 6.404/76; or (ii) the value
of the equity of the INCORPORATED evaluated at market prices established in item
6.1 of this Protocol and Justification.
8. INCORPORATOR'S CAPITAL INCREASE
8.1 Based on the Accounting Evaluation Report mentioned in item 2.1 and in order
to support the issue of shares of the INCORPORATOR, the corporate capital of the
INCORPORATOR will be increased in R$ 37.284,62, not considering the
INCORPORATOR's interest in the INCORPORATED's corporate capital.
8.2 The INCORPORATOR's corporate capital increase will be realized by means of
the issue of 68 new shares, being 2 common shares and 66 class A preferred
shares, all of them with the same rights and advantages attributed according to
the by-laws of the INCORPORATOR, to be attributed to the shareholders of the
INCORPORATED, in substitution for the shares issued by the INCORPORATED that
will be extinct, as per the ratio of substitution established in item 5.1 of
this Protocol and Justification, and the shares issued according to this item
will participate fully in the results of this corporate year.
8.3 The Incorporation of the INCORPORATED shall occur at the same General
Meeting that will approve the incorporation, by the INCORPORATOR, of ECONOMICO
S.A. EMPREENDIMENTOS (ESAE) and of OPP QUIMICA S.A.. In this context, the
corporate capital of the INCORPORATOR, by the end of the process of
incorporation of those companies, is estimated to be R$ 1.871.713.164,92 divided
into 1.226.091.150 common shares and 2.172.222.142 preferred shares, being
2.160.764.402 class A preferred shares and 11.457.740 class B preferred shares,
and Article 4th of the by-laws of the INCORPORATOR will read as follows:
"Article 4th - The Corporate Capital is of R$ 1.871.713.164,92 divided into
3.398.313.292 shares, being 1.226.091.150 common shares, 2.160.764.402 class A
preferred shares and 11.457.740 class B preferred shares.
8.4 The shares issued by the INCORPORATOR to be attributed to the shareholders
of the INCORPORATED in substitution for the shares that will be extinct will
deserve the same rights of the shares issued by the INCORPORATOR, as now
outstanding. The preferences and advantages of the class A preferred shares
issued by the INCORPORATOR, as established in article 9th of its by-laws, are as
follows:
a) class A preferred shares, as well as class B preferred shares, are not
entitled to vote, however, they entitle their holders to priority in
receiving a minimum, non-cumulative dividend of 6% (six per cent) on its
unitary value, according to the profits available for distribution to
shareholders. Unitary value of shares means the division of the corporate
capital by the total outstanding shares;
b) since the dividend mentioned in the above line "a" is paid for the class A
and class B preferred shares, and for the common shares issued by the
INCORPORATOR, the class A preferred shares will compete, on the same
conditions, with the common shares in the distribution of the remaining
profit;
c) the class A preferred shares and the common shares will participate in the
distribution, by the INCORPORATOR, of shares resulting from incorporation
of reserves to the corporate capital;
d) the class A and class B preferred shares are assured priority in the
reimbursement of capital; and
e) all the classes and types of shares issued by the INCORPORATOR will deserve
the rights of joint sale ("tag along") in case of alienation of the control
of the INCORPORATOR, at the same price per share paid to the alienator(s).
The right of joint sale shall not apply if the transfer of the control of
the INCORPORATOR occurs: (a) in view of a decision or legal act such as
pledge or adjudication in execution or (b) in view of the final decision of
the regulatory boards, including the Administrative Committee of Economic
Defense - XXXX.
8.5 The shares of the INCORPORATED's capital belonging to the INCORPORATOR will
be extinct based on art. 226, ss. 1st of Law # 6.404 dated December 15, 1976.
9. SPECIAL CONDITIONS
9.1 The operation of Incorporation proposed in this Protocol and Justification
will be informed to the Auditing Committees of the INCORPORATED and
INCORPORATOR, Managing Board of the PARTIES, and submitted to the shareholders
of the PARTIES at General Meetings, provided the legal terms for call are
observed.
9.2 If the managing boards understand that the payment of the value of the
reimbursement of the shares to the dissenting shareholders of the INCORPORATED
exercising the right of withdrawal will risk the financial stability of the
INCORPORATOR, General Meetings of the Shareholders of the PARTIES will be called
immediately, according to the legal terms, in order to analyze the now proposed
operation and, is applicable, revert the whole incorporation process.
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, March 10, 2003.
BRASKEM S.A.
(signed: illegible)
Xxxxxxxx Xxxxxxx xx Xxxxxxxx Ferro - Director
(signed: illegible)
Xxxx Xxxx Altit - Director
NITROCARBONO S.A.
(signed: illegible)
Xxxxxxx Xxxxxx Paraiso Xxxxx - CEO
(signed: illegible)
Xxxx Xxxx Altit - Director
Annex:
