|
☐
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
☒
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the fiscal year ended March 31, 2013
|
|
☐
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
☐
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of each class
|
Name of each exchange on which registered
|
Class A Common Shares
|
New York Stock Exchange
|
Title of Class
|
Number of Shares Outstanding
|
Class A Common Shares, par value $.01 per share
|
174,355,341
|
Class B – series 1 – Common Shares, par value $.01 per share
|
96,332,044
|
5
|
||
5
|
||
5
|
||
5
|
||
5
|
||
8
|
||
8
|
||
8
|
||
28
|
||
28
|
||
30
|
||
41
|
||
42
|
||
44
|
||
44
|
||
51
|
||
67
|
||
70
|
||
70
|
||
71
|
||
75
|
||
77
|
||
78
|
||
78
|
||
83
|
||
84
|
||
85
|
||
86
|
||
87
|
||
87
|
||
92
|
||
93
|
||
93
|
||
93
|
||
97
|
||
97
|
||
97
|
||
100
|
||
100
|
||
100
|
||
100
|
||
100
|
||
100
|
||
100
|
||
100
|
||
108
|
||
109
|
||
109
|
||
111
|
||
111
|
||
112
|
||
112
|
||
112
|
||
116
|
117
|
|
117
|
|
117
|
|
117
|
|
118
|
|
118
|
|
118
|
|
118
|
|
119
|
|
119
|
|
119
|
|
119
|
|
120
|
|
120
|
|
120
|
|
120
|
|
·
|
general economic, political, demographic and business conditions in Brazil and in the world and the cyclicality affecting our selling prices;
|
|
·
|
the effects of the global financial and economic crisis in Brazil;
|
|
·
|
our ability to implement our expansion strategy in other regions of Brazil and international markets through organic growth, acquisitions or Joint Ventures;
|
|
·
|
competitive developments in the natural gas, ethanol and sugar industries;
|
|
·
|
our ability to implement our capital expenditure plan, including our ability to arrange financing when required and on reasonable terms;
|
|
·
|
price of natural gas, ethanol and other fuels, as well as sugar;
|
|
·
|
equipment failure and service interruptions;
|
|
·
|
our ability to compete and conduct our businesses in the future;
|
|
·
|
adverse weather conditions;
|
|
·
|
changes in customer demand;
|
|
·
|
changes in our businesses;
|
|
·
|
our ability to successfully work together with our partners to operate our partnerships such as the Joint Venture and to integrate Comgás’ business into ours;
|
|
·
|
technological advances in the ethanol sector and advances in the development of alternatives to ethanol;
|
|
·
|
government interventions and trade barriers, resulting in changes in the economy, taxes, rates, prices or regulatory environment including in relation to our regulated businesses such as Comgás;
|
|
·
|
inflation, depreciation, valuation and devaluation of the Brazilian real;
|
|
·
|
other factors that may affect our financial condition, liquidity and results of our operations; and
|
|
·
|
other risk factors discussed under “Item 3. Key Information––D. Risk Factors.”
|
As of and For Fiscal Year Ended March 31,
|
||||||||||||||||
2013
|
2012
(restated)
|
2011
|
2010
|
|||||||||||||
(in millions of reais, except where otherwise indicated)
|
||||||||||||||||
Income Statement Data:
|
||||||||||||||||
Net sales
|
30,016.5 | 23,390.5 | 18,063.5 | 15,336.1 | ||||||||||||
Cost of goods sold
|
(26,684.3 | ) | (20,887.6 | ) | (15,150.1 | ) | (13,271.3 | ) | ||||||||
Gross profit
|
3,332.2 | 2,502.8 | 2,913.4 | 2,064.8 | ||||||||||||
Selling expenses
|
(1,292.3 | ) | (1,052.3 | ) | (1,026 | ) | (862.7 | ) | ||||||||
General and administrative expenses
|
(845.5 | ) | (634.0 | ) | (545.4 | ) | (501.7 | ) | ||||||||
Gain on tax recovery program
|
270.3 | |||||||||||||||
Gain on the de-recognition of subsidiaries to form the JVs
|
— | 2,752.7 | — | — | ||||||||||||
Other, net
|
326.3 | 122.4 | (33.8 | ) | 37.5 | |||||||||||
Operations income / (expenses)
|
(1,811.5 | ) | 1,188.9 | (1,605.3 | ) | (1,056.5 | ) | |||||||||
Income before financial results, equity income of associates and income taxes
|
1,520.8 | 3.691.6 | 1,308.1 | 1,008.3 | ||||||||||||
Equity income of associates
|
58.9 | 33.3 | 25.2 | 4.2 | ||||||||||||
Financial results, net
|
(619.6 | ) | (480.5 | ) | (151.1 | ) | 493.4 | |||||||||
Finance income
|
(560.8 | ) | (447.2 | ) | (126.0 | ) | 497.6 | |||||||||
Income before income taxes
|
960.0 | 3,244.5 | 1,182.2 | 1,505.9 | ||||||||||||
Income taxes:
|
||||||||||||||||
Current
|
(294.6 | ) | (133.9 | ) | (85.4 | ) | (78.4 | ) | ||||||||
Deferred
|
153.4 | (982.5 | ) | (329.1 | ) | (344.9 | ) | |||||||||
(141.2 | ) | (1,116.4 | ) | (414.5 | ) | (423.3 | ) | |||||||||
Profit from continuing operations
|
818.8 | 2,128.1 | 767.8 | 1,082.6 | ||||||||||||
Profit from discontinued operation, net of tax
|
138.9 | 64.2 | — | — | ||||||||||||
Net income for the year
|
957.7 | 2,192.3 | 767.8 | 1,082.6 | ||||||||||||
Net income for the year attributable to non-controlling interests
|
(526.3 | ) | (1,011.1 | ) | (296.7 | ) | (376.4 | ) | ||||||||
Net income for the year attributable to owners of the Company
|
431.4 | 1,181.3 | 470.9 | 706.1 |
As of and For Fiscal Year Ended March 31,
|
||||||||||||||||
2013
|
2012
(restated)
|
2011
|
2010
|
|||||||||||||
(in millions of reais, except where otherwise indicated)
|
||||||||||||||||
Statement of Financial Position Data:
|
||||||||||||||||
Cash and cash equivalents and securities
|
2,599.0 | 1,654.1 | 1,271.8 | 1,110.8 | ||||||||||||
Inventories
|
911.9 | 748.1 | 670.3 | 612.7 | ||||||||||||
Biological assets
|
989.2 | 968.0 | 1,561.1 | 963.2 | ||||||||||||
Property, plant and equipment
|
7,435.1 | 7,866.9 | 7,980.5 | 6,114.5 | ||||||||||||
Intangible assets
|
13,161.8 | 4,932.2 | 3,889.6 | 3,825.4 | ||||||||||||
Total assets
|
33,796.3 | 22,168.1 | 18,614.0 | 16,417.2 | ||||||||||||
Current liabilities
|
4,655.4 | 2,074.5 | 2,380.8 | 2,086.2 | ||||||||||||
Non-current liabilities
|
||||||||||||||||
Loans and borrowings
|
9,665.2 | 4,659.1 | 6,274.9 | 5,136.5 | ||||||||||||
Provision for judicial demands
|
1,145.3 | 1,051.7 | 666.3 | 612.0 | ||||||||||||
Equity attributable to owners of the Company
|
6,017.7 | 5,577.3 | 4,560.9 | 4,195.5 | ||||||||||||
Equity attributable to non-controlling interests
|
7,278.3 | 3,904.3 | 2,767.8 | 2,296.4 | ||||||||||||
Total equity
|
13,296.0 | 9,481.6 | 7,328.7 | 6,491.9 | ||||||||||||
Other Financial Data:
|
||||||||||||||||
Depreciation and amortization
|
1,544.1 | 1,141.1 | 1,359.0 | 1,127.9 | ||||||||||||
Net debt (1)
|
8,736.2 | 3,229.1 | 5,285.7 | 4,261.7 | ||||||||||||
Working capital (2)
|
1,898.4 | 2,679.1 | 1,099.8 | 1,312.5 | ||||||||||||
Cash flow provided by (used in):
|
||||||||||||||||
Operating activities
|
2,343.1 | 1,951.6 | 2,327.2 | 2,175.8 | ||||||||||||
Investing activities
|
(4,803.5 | ) | (2,121.3 | ) | (3,145.7 | ) | (2,435.3 | ) | ||||||||
Financing activities
|
3,295.5 | 536.3 | 980.7 | 317.9 | ||||||||||||
Earnings per share from continued (basic )
|
R$ | 1.30 | R$ | 4.25 | R$ | 1.74 | R$ | 2.61 | ||||||||
Earnings per share from continued (diluted)
|
R$ | 1.18 | R$ | 4.25 | R$ | 1.74 | R$ | 2.61 | ||||||||
Earnings per share from discontinued (basic)
|
R$ | 0.33 | R$ | 0.15 | R$ | - | R$ | - | ||||||||
Earnings per share from discontinued(diluted)
|
R$ | 0.33 | R$ | 0.15 | R$ | - | R$ | - | ||||||||
Number of shares outstanding
|
270,687,385 | 270,687,385 | 270,687,385 | 270,687,385 | ||||||||||||
Declared Dividends
|
477.2 | 141.0 | 220.1 | 44.0 | ||||||||||||
Declared Dividends (millions of U.S. dollars)
|
US$ | 237.0 | US$ | 77.4 | US$ | 135.1 | US$ |
24.7
|
||||||||
Declared Dividends per share (reais)
|
R$ | 1.76 | R$ | 0.53 | R$ | 0.81 | R$ | 0.16 | ||||||||
Declared Dividends per share (U.S. dollars)
|
US$ | 0.88 | US$ | 0.29 | US$ | 0.50 | US$ | 0.09 | ||||||||
Other Operating Data:
|
||||||||||||||||
Crushed sugarcane (in million tonnes)
|
56.2 | 52.9 | 54.2 | 50.0 | ||||||||||||
Sugar production (in million tonnes)
|
4.2 | 3.9 | 3.9 | 3.5 | ||||||||||||
Ethanol production (in billion liters)
|
1.9 | 1.9 | 2.2 | 1.8 | ||||||||||||
Volume of fuel sold (in million liters)
|
21,967.4 | 18,526.3 | 6,076.9 | 5,490.6 | ||||||||||||
Sugar elevated (Rumo) (in million tonnes)
|
8.6 | 7.8 | 7.5 | 8.1 | ||||||||||||
Natural Gas (Comgás) (in million m³)
|
2,293.3 | — | — | — | ||||||||||||
Volume of lubricants and base oil sold (in million liters)
|
286.6 | 216.7 | 166.4 | 130.8 |
(1)
|
Net debt consists of current and non-current debt, net of cash and cash equivalents, marketable securities, derivatives on debt and CTNs (Brazilian Treasury bills) recorded in our consolidated financial statements as other non-current assets. Net debt is a non-GAAP measure.
|
(2)
|
Working capital consists of total current assets less total current liabilities.
|
As of and For Fiscal Year Ended March 31,
|
||||||||||||||||
2013
|
2012
|
2011
|
2010
|
|||||||||||||
(in millions of reais, except where otherwise indicated)
|
||||||||||||||||
Current loans and borrowings
|
2,153.6 | 540.3 | 957.1 | 839.5 | ||||||||||||
Non-current debt
|
9,665.2 | 4,659.1 | 6,274.9 | 5,136.6 | ||||||||||||
Total
|
11,818.8 | 5,199.4 | 7,232 | 5,976.1 | ||||||||||||
Cash and cash equivalents and securities
|
(2,599.0 | ) | (1,654.1 | ) | (1,271.8 | ) | (1,110.8 | ) | ||||||||
Special Program for Agricultural Securitization - PESA (debt)
|
(348.1 | ) | (316.2 | ) | (674.5 | ) | (603.6 | ) | ||||||||
Derivatives on debt
|
(135.3 | ) | — | — | — | |||||||||||
Net debt
|
8,736.2 | 3,229.1 | 5,285.7 | 4,261.7 |
Year
|
Period-end
|
Average(1)
|
Low
|
High
|
||||||||||||
March 31, 2009
|
2.315 | 2.005 | 1.559 | 2.500 | ||||||||||||
March 31, 2010
|
1.781 | 1.785 | 1.764 | 1.823 | ||||||||||||
March 31, 2011
|
1.629 | 1.666 | 1.628 | 1.690 | ||||||||||||
March 31, 2012
|
1.822 | 1.699 | 1.534 | 1.901 | ||||||||||||
March 31, 2013
|
2.014 | 2.004 | 1.822 | 2.112 |
Month
|
Period-end
|
Average(2)
|
Low
|
High
|
||||||||||||
January 2013
|
1.988 | 2.030 | 1.822 | 2.047 | ||||||||||||
February 2013
|
1.975 | 1.973 | 1.988 | 1.989 | ||||||||||||
March 2013
|
2.014 | 1.982 | 1.952 | 2.018 | ||||||||||||
April 2013
|
2.002 | 2.002 | 1.973 | 2.024 | ||||||||||||
May 2013
|
2.132 | 2.034 | 2.002 | 2.131 |
Month
|
Period-end
|
Average(2)
|
Low
|
High
|
||||||||||||
June 2013
|
2.216 | 2.172 | 2.123 | 2.264 | ||||||||||||
July 2013 (through July 29)
|
2.260 | 2.249 | 2.227 | 2.270 |
(1)
|
Represents the average of the exchange rates on the closing of each day during the year.
|
(2)
|
Represents the average of the exchange rates on the closing of each day during the month.
|
|
·
|
fluctuations in gasoline prices;
|
|
·
|
variances in the production capacities of our competitors; and
|
|
·
|
the availability of substitute goods for the ethanol and sugar products we produce.
|
|
·
|
expropriation of the port concession in the public interest;
|
|
·
|
default by Rumo Logística in the performance of its obligations under the port concession agreement, including the payment of concession fees or failure to comply with other legal and regulatory obligations;
|
|
·
|
Rumo Logística’s failure to comply with determinations by the granting authority; or
|
|
·
|
bankruptcy or dissolution of Rumo Logística.
|
|
·
|
the issuance and renewal of environmental licenses and authorizations;
|
|
·
|
the generation, storage, handling, use and transportation of hazardous materials;
|
|
·
|
sugarcane burning;
|
|
·
|
the conservation of soil and water resources;
|
|
·
|
the protection of riparian vegetation and the recovery of water sources;
|
|
·
|
the emission and discharge of hazardous materials into the ground, air or water; and
|
|
·
|
the health and safety of our employees.
|
|
·
|
catastrophic events, including hurricanes and floods;
|
|
·
|
environmental remediation;
|
|
·
|
labor difficulties (including work stoppages, strikes and other events); and
|
|
·
|
disruptions in the supply of our products to our facilities or means of transportation.
|
|
·
|
elect a majority of our directors and appoint our executive officers, set our management policies and exercise overall control over our Company and subsidiaries;
|
|
·
|
agree to sell or otherwise transfer his controlling stake in our Company; and
|
|
·
|
determine the outcome of substantially all actions requiring shareholder approval, including transactions with related parties, corporate reorganizations, acquisitions and dispositions of assets, and dividends.
|
|
·
|
exchange rate movements;
|
|
·
|
exchange control policies;
|
|
·
|
expansion or contraction of the Brazilian economy, as measured by rates of growth in gross domestic product, or “GDP”;
|
|
·
|
inflation;
|
|
·
|
tax policies;
|
|
·
|
other economic, political, diplomatic and social developments in or affecting Brazil;
|
|
·
|
interest rates;
|
|
·
|
liquidity of domestic capital and lending markets; and
|
|
·
|
social and political instability.
|
|
·
|
a classified board of directors with staggered three-year terms;
|
|
·
|
restrictions on the time period in which directors may be nominated;
|
|
·
|
the affirmative vote of a majority of our directors in office and the resolution of the shareholders passed by a majority of votes cast at a general meeting or, if not approved by a majority of the directors in office, the resolution of the shareholders at a general meeting passed by 66- 2/3% of all votes attaching to all shares then in issue for amalgamation and other business combination transactions; and
|
|
·
|
the tag-along rights described under “Item 10. Additional Information—B. Memorandum and By-laws—Tag-along Rights.”
|
Raízen Combustíveis Highlights
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013 (1)
|
2012(1)
|
2011
|
||||||||||
Service stations
|
4,700 | 4,600 | 1,710 | |||||||||
Fuel sold (billion liters)
|
22.0 | 18.5 | 6.1 | |||||||||
Ethanol sales (R$ million)
|
2,401.6 | 2,117.9 | 814.6 | |||||||||
Gasoline sales (R$ million)
|
17,688.8 | 14,674.4 | 4,656.9 | |||||||||
Diesel sales (R$ million)
|
17,844.4 | 14,051.4 | 5,325.3 | |||||||||
Jet Fuel sales (R$ million)
|
5,003.9 | 3,632.0 | - | |||||||||
Others (R$ million)
|
593.5 | 603.3 | 111.5 | |||||||||
Other services (R$ million)
|
- | 16.9 | 57.9 | |||||||||
Net sales (R$ million)
|
43,532.2 | 35,096.1 | 10,966.2 |
(1)
|
Raízen Combustíveis results are presented prior to being proportionally consolidated into our consolidated financial statements. As from June 1, 2011 we had consolidated 50% of Raízen Combustíveis results. See “Item 5. Operating and Financial Review and Prospects—A. Operating Results.”
|
Raízen Energia Highlights
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013 | (*) | 2012 | (*) | 2011 | ||||||||
Crushed sugarcane (million tonnes)
|
56.2 | 52.9 | 54.3 | |||||||||
Sugar volume sold (thousand tonnes)
|
4,229.8 | 3,987.5 | 4,290.9 | |||||||||
Ethanol volume sold (million liters)
|
2,322.8 | 2,215.6 | 2,247.3 | |||||||||
Energy sold (MWh)
|
3,034.8 | 1,491.3 | 1,254.0 | |||||||||
Net sugar sales (R$ million)
|
4,354.0 | 3,912.8 | 3,853.4 | |||||||||
Domestic market
|
899.2 | 1,217.4 | 1,387.3 | |||||||||
Foreign market
|
3,454.8 | 2,695.4 | 2,466.2 | |||||||||
Net ethanol sales (R$ million)
|
3,299.9 | 2,871.5 | 2,203.7 | |||||||||
Domestic market
|
1,328.4 | 2,245.1 | 1,958.9 | |||||||||
Foreign market
|
1,971.5 | 626.4 | 244.8 | |||||||||
Net energy cogeneration sales (R$ million)
|
569.7 | 235.1 | 194.9 | |||||||||
Other products and services (R$ million)
|
244.5 | 228.2 | 137.1 | |||||||||
Raízen Energia net operating revenue (R$ million)
|
8,468.2 | 7,247.7 | 6,389.2 |
(*)
|
Raízen Energia’s results are presented prior to being proportionally consolidated into our consolidated financial statements. As from June 1, 2011 we had consolidated 50% of Raízen Energia’s results. See “Item 5. Operating and Financial Review and Prospects—A. Operating Results.”
|
For Fiscal Year Ended March 31,
|
||||||||||||||||||||||||
2013
|
%
|
2012
|
%
|
2011
|
%
|
|||||||||||||||||||
(millions of tonnes, except percentages)
|
||||||||||||||||||||||||
Sugarcane harvested from owned (only in 2010 and 2011)/leased land
|
28.3 | 50.3 | 26.5 | 50.1 | 27.4 | 50.6 | ||||||||||||||||||
Sugarcane purchased from third-parties
|
27.9 | 49.7 | 26.4 | 49.9 | 26.8 | 49.4 | ||||||||||||||||||
Total
|
56.2 | 100.0 | 52.9 | 100.0 | 54.2 | 100.0 |
|
·
|
Preparation of the juice. The fermentation is fed with a juice composed of approximately 20% of sugar, which is prepared with juice (from the treatment), molasses (from sugar production) and water. This juice must be cooled to approximately 30°C.
|
|
·
|
Fermentation. The fermentation of the juice is the result of the action of yeast, which firstly inverts the sucrose to glucose and fructose (monosaccharide), and then converts the monosaccharide into ethanol and carbon dioxide. This reaction occurs in a fermenter, which is fed with juice and yeast.
|
|
·
|
Centrifuging. After the fermentation, the resulting product is carried to centrifuges that separate the yeast from the beer, a solution of approximately 9%v/v (oGL) of ethanol.
|
|
·
|
Treatment of the yeast. The yeast that comes from the centrifuges is treated with sulfuric acid and returned to the fermenter tank to be utilized again.
|
|
·
|
Distillation. The beer is distillated in a sequence of distillation columns, which separate the water from the ethanol. This process occurs basically due to the differences of ethanol’s and water’s ebullition temperatures. In order to produce hydrous ethanol, two columns are used to achieve the concentration of 94%v/v (oGL) ethanol. From the first column, a slop called vinasse is obtained, which is used as a fertilizer in the sugarcane fields.
|
|
·
|
Dehydration. In order to produce anhydrous ethanol, two more columns are used to achieve the concentration of 99%v/v (oGL) ethanol. In the first column, the excess of water is separated with the aid of cycle-hexane.
|
Energy Cogeneration Highlights:
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013 | (*) | 2012 | (*) | 2011 | ||||||||
Energy sold (MWh)
|
3,034.8 | 1,491.3 | 1,254.0 | |||||||||
Net sales (R$ million)
|
569.7 | 235.1 | 194.9 |
(*)
|
Raízen Energia’s results are presented prior to being proportionally consolidated into our consolidated financial statements. As from June 1, 2011 we had consolidated 50% of Raízen Energia’s results. See more details in “Item 5. Operating and Financial Review and Prospects—A. Operating Results.”
|
|
·
|
Environmental Company of the state of São Paulo (Companhia Ambiental do Estado de São Paulo), or CETESB;
|
|
·
|
Environmental Agency of the state of Goiás (Agência Goiana do Meio Ambiente), or AGMA;
|
|
·
|
Environmental Institute of the state of Mato Grosso do Sul (Instituto de Meio Ambiente do Mato Grosso do Sul), or IMASUL.
|
|
·
|
entering into certain related party transactions;
|
|
·
|
sale or assignment of the assets related to services rendered as well as the imposition of any encumbrance (including any security, bond, guarantee, pledge and mortgage) on them or any other assets related to the concession or the revenues of the electricity services;
|
|
·
|
changes in controlling interest of the holder of the authorization or concession; and
|
|
·
|
non-compliance with the schedule for the beginning of the commercial operation of the power plant, as previously approved by the ANEEL through the relevant contract.
|
Comgás Highlights
|
For Fiscal Year Ended December 31,
|
|||||||||||
2012
|
2011
|
2010
|
||||||||||
Natural gas sold (million cbm)
|
5,258.6 | 4,834.7 | 4,909.9 | |||||||||
Net sales (R$ million)(1)
|
5,279.5 | 4,102.7 | 4,095.3 | |||||||||
(-) 10 (ten) months (January to October/2012)
|
(4,328.3 | ) | - | - | ||||||||
(+) 3 (three) months (January to March/2013)
|
1,447.8 | - | - | |||||||||
Net sales (R$ million) consolidated
|
2,399.9 | - | - |
|
(1)
|
These figures are related to the fiscal years ended December 31, Comgás financial statements. Considering the acquisition on November 5, 2012 net sales for the period of five months are recorded in the Company’s income statement as discussed in “Item 5. Operating and Financial Review and Prospectus—A. Operating Results.”
|
Lubricants Highlights:
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013
|
2012
|
2011
|
||||||||||
Volume of lubricants sold (thousand liters)
|
286.6 | 216.7 | 166.4 | |||||||||
Lubricants sales (R$ million)
|
1,255.5 | 1,018.8 | 829.0 | |||||||||
Others sales (R$ million)
|
167.1 | 46.7 | ― | |||||||||
Net sales (R$ million)
|
1.422,6 | 1,065.5 | 829.0 |
Rumo Highlights:
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013
|
2012
|
2011
|
||||||||||
Port elevation volume (thousand tonnes)
|
8,565.6 | 7,759.2 | 7,481.0 | |||||||||
Transportation sales (R$ million)
|
549.4 | 413.4 | 305.8 | |||||||||
Loading sales (R$ million)
|
150.0 | 141.0 | 118.1 | |||||||||
Other sales (R$ million)
|
13.3 | 17.6 | 24.1 | |||||||||
Net sales (R$ million)
|
712.8 | 572.0 | 448.0 |
|
·
|
Instituto Nacional de Colonização e Reforma Agrária or INCRA: Responsible for regulating the ownership of agricultural properties. This agency monitors the operation of the agricultural properties.
|
|
·
|
Georeferencing Process: Georeferencing is an important procedure, necessary for registering any title of an acquired agricultural property. This procedure must be approved by INCRA and eliminates risks of overlap in property titles. INCRA is the primary regulator for approving georeferencing for any agricultural properties in the country.
|
|
·
|
Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis, or IBAMA: is a regulator, responsible for environmental licenses relating to operations.
|
|
·
|
Local environmental agencies: The Secretarias de Meio Ambiente Estaduais (State Secretaries of the Environment), Secretaria do Meio Ambiente or SEMA – MT, Secretaria do Meio Ambiente or SMA and Instituto do Meio Ambiente e Recursos Hídricos or INEMA.
|
|
·
|
Raízen Energia S.A.: a sugar and ethanol company, which, among other things, conducts the production of sugar and ethanol, as well as all cogeneration activities. Cosan and its subsidiaries and Shell and its affiliates each own 50% common equity interest in this entity. In addition, Cosan and its subsidiaries own 50% plus one share of the voting shares (and preferred shares bearing preferential dividend rights in certain circumstances), whereas Shell and its affiliates own 50% minus one of this entity’s voting shares.
|
|
·
|
Raízen Combustíveis S.A.: a downstream company, which conducts the supply, distribution and sale of fuels in Brazil. The resulting company has a network of approximately 4,600 fuel stations throughout Brazil. Cosan and its subsidiaries and Shell and its affiliates likewise each own 50% common equity interest in this entity. In this entity, however, Cosan and its subsidiaries own 50% minus one of the voting shares, whereas Shell and its affiliates own 50% plus one of the voting shares. Cosan and its subsidiaries and Shell and its affiliates also hold preferred shares bearing preferential dividend rights in certain circumstances if certain contingent targets are met.
|
|
·
|
Raízen S.A.: a management company, which is the Joint Venture’s face to the market and facilitates the building of a unified corporate culture. Cosan and its subsidiaries and Shell and its affiliates each own 50% of the equity and voting interests in this company.
|
Mill
|
Estimated completion date
|
Current crushing capacity
|
Future crushing capacity
|
Increase
|
|||||||||
(in million tons per year)
|
|||||||||||||
Caarapó
|
2014
|
2.3 | 4.4 | 2.1 | |||||||||
Paraalcool
|
2015
|
1.1 | 2.6 | 1.5 | |||||||||
3.6 |
|
·
|
a brief overview of our company and the principal factors that influence our results of operations, financial condition and liquidity;
|
|
·
|
a review of our financial presentation and accounting policies, including our critical accounting policies;
|
|
·
|
a discussion of the principal factors that influence our results of operations;
|
|
·
|
a discussion of developments since the end of fiscal year 2013 that may materially affect our results of operations, financial condition and liquidity;
|
|
·
|
a discussion of our results of operations for the years ended March 31, 2013, 2012 and 2011;
|
|
·
|
a discussion of our liquidity and capital resources, including our working capital at March 31, 2013, our cash flows for the years ended March 31, 2013, 2012 and 2011, and our material short-term and long-term indebtedness at March 31, 2013; and
|
|
·
|
a discussion of our contractual commitments.
|
|
·
|
As of March 31, 2013, the impact of a reasonable 10% increase (decrease) in estimated market prices, with all other variables held constant, would result in an increase (decrease) in the fair value of our plantations less cost to sell of R$516.7 million for sugarcane.
|
|
·
|
A reasonable 10% increase (decrease) in estimated costs, with all other variables held constant, would result in an increase (decrease) in the fair value of our plantations less cost to sell of R$ 518.3 million for sugarcane.
|
|
·
|
A reasonable 10% increase (decrease) in estimated yields, with all other variables held constant, would result in an increase (decrease) in the fair value of our plantations less cost to sell of R$1,175.9 million for sugarcane.
|
|
·
|
A reasonable 100 basis points increase (decrease) in discount rates, with all other variables held constant, would result in an increase (decrease) in the fair value of our plantations less cost to sell of R$54 million for sugarcane.
|
Sugar NY11 (US$/lb)
|
||||||||||||
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
Initial quote
|
0.2458 | 0.2744 | 0.1670 | |||||||||
Closing quote
|
0.1766 | 0.2471 | 0.2711 | |||||||||
Daily average quote
|
0.2007 | 0.2563 | 0.2376 | |||||||||
Monthly average quote
|
0.2005 | 0.2542 | 0.2391 | |||||||||
High quote
|
0.2458 | 0.3134 | 0.3531 | |||||||||
Low quote
|
0.1766 | 0.2047 | 0.1367 |
Sugar LIFFE (US$/ton)
|
||||||||||||
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
Initial quote
|
643.10 | 713.20 | 481.60 | |||||||||
Closing quote
|
503.30 | 643.60 | 711.70 | |||||||||
Daily average quote
|
554.96 | 678.13 | 639.66 | |||||||||
Monthly average quote
|
554.71 | 672.42 | 643.84 | |||||||||
High quote
|
658.20 | 876.30 | 844.50 | |||||||||
Low quote
|
483.20 | 582.00 | 437.80 |
Hydrous Ethanol Esalq (US$/thousand liters)
|
||||||||||||
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
Initial quote
|
663.10 | 890.30 | 431.10 | |||||||||
Closing quote
|
597.00 | 667.40 | 982.20 | |||||||||
Daily average quote
|
555.91 | 705.80 | 557.85 | |||||||||
Monthly average quote
|
556.50 | 703.07 | 576.16 | |||||||||
High quote
|
663.10 | 922.80 | 982.20 | |||||||||
Low quote
|
494.90 | 597.50 | 381.10 |
Anhydrous Ethanol Esalq (US$/thousand liters)
|
||||||||||||
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
Initial quote
|
705.90 | 1,219.70 | 495.70 | |||||||||
Closing quote
|
663.40 | 709.40 | 1,157.20 | |||||||||
Daily average quote
|
636.37 | 840.11 | 636.49 | |||||||||
Monthly average quote
|
636.57 | 832.68 | 638.69 | |||||||||
High quote
|
705.90 | 1,726.50 | 1,157.20 | |||||||||
Low quote
|
545.80 | 666.00 | 435.60 |
Ethanol (R$/thousand liters)
|
||||||||||||
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
Average Unitary Price
|
1,627 | 1,406 | 950 |
|
·
|
Hedging transactions (as discussed under “Hedging Transactions and Exposures”);
|
|
·
|
Trade barriers in U.S., European and other markets that currently limit access to their domestic sugar industry through quotas, subsidies and restrictions on imports;
|
|
·
|
The evolving use of ethanol derivatives as an alternative to oil derivatives and as a cleaner-burning fuel, derived from renewable sources;
|
|
·
|
The use of ethanol as a cleaner-burning fuel, derived from renewable sources;
|
|
·
|
Changes in international prices of oil (denominated in U.S. dollars) and related changes in the domestic prices of oil (denominated in reais);
|
|
·
|
The growth rate of the global economy and its resulting corresponding growth in worldwide sugar consumption;
|
|
·
|
The growth rate of Brazil´s gross domestic product, which impacts the demand for our products and, consequently, our sales volume in Brazil; and
|
|
·
|
The tax policies adopted by the Brazilian federal government and the governments of the Brazilian states in which we operate, and our resulting tax obligation.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
(restated)
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Consolidated Income Statement
|
||||||||||||
Net sales
|
30,016.5 | 23,390.5 | 28.3 | % | ||||||||
Cost of goods sold
|
(26,684.3 | ) | (20,887.6 | ) | (27.8 | )% | ||||||
Gross profit
|
3,332.2 | 2,502.8 | 33.1 | % | ||||||||
Selling expenses
|
(1,292.3 | ) | (1,052.3 | ) | (22.8 | )% | ||||||
General and administrative expenses
|
(845.5 | ) | (634.0 | ) | (33.4 | )% | ||||||
Other, net
|
326.3 | 122.4 | 166.6 | % | ||||||||
Gain on the de-recognition of subsidiaries to form the JVs
|
— | 2,752.7 | (100.0 | )% | ||||||||
Operations income / (expenses)
|
(1,811.5 | ) | 1,188.9 | (252.4 | )% | |||||||
Income before financial results, equity income of associates and income taxes
|
1,520.8 | 3,691.6 | (58.8 | )% | ||||||||
Equity income of associates
|
58.9 | 33.3 | 76.9 | % | ||||||||
Financial results, net
|
(619.6 | ) | (480.5 | ) | (28.9 | )% | ||||||
Profit before income taxes
|
960.0 | 3,244.5 | (70.4 | )% | ||||||||
Income taxes (Current)
|
(294.6 | ) | (133.9 | ) | (120.0 | )% | ||||||
Income taxes (Deferred)
|
153.4 | (982.5 | ) | 84.4 | % | |||||||
Total income taxes
|
(141.2 | ) | (1,116.4 | ) | (87.4 | )% | ||||||
Profit from continuing operations
|
818.8 | 2,128.1 | (61.5 | )% | ||||||||
Profit from discontinued operations, net of tax
|
138.9 | 64.2 | 116.4 | % | ||||||||
Net income for the year
|
957.7 | 2,192.3 | (56.3 | )% | ||||||||
Net income attributable to non-controlling interests
|
(526.3 | ) | (1,011.0 | ) | 47.8 | % | ||||||
Net income attributable to owners of the Company
|
431.4 | 1,181.3 | (63.5 | )% |
|
·
|
an increase of 16.8% to R$8,468.2 million in net sales in the Raízen Energia (sugar and ethanol), due to increased sales of sugar, ethanol and energy from cogeneration;
|
|
·
|
an increase of 24.0% to R$43,532.2 million in the net sales of Raízen Combustíveis (fuel distribution), primarily due to the rise in average gasoline, diesel and aviation fuel prices;
|
|
·
|
an increase in the transportation and loading operations of Rumo Logística, due to our contractual agreement with America Latina Logística S.A., or ALL, primarily responsible for the increase of 24.6% in net sales, to R$712.8 million;
|
|
·
|
an increase in net sales of R$51.9 million related to the Radar acquisition and the consolidation of Radar’s results for the nine months following its acquisition on July 14, 2012; and
|
|
·
|
an increase in net sales of R$2,399.0 million related to the Comgás acquisition and the consolidation of Comgás’ results for the five months following its acquisition on November 5, 2012.
|
Net Sales
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013
|
2012
(restated)
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (sugar, ethanol and cogeneration)(1)
|
8,468.2 | 7,247.7 | 16.8 | % | ||||||||
Sugar
|
4,354.0 | 3,912.8 | 11.3 | % | ||||||||
Ethanol
|
3,299.9 | 2,871.5 | 14.9 | % | ||||||||
Energy cogeneration
|
569.7 | 235.1 | 142.3 | % | ||||||||
Other products and services
|
244.6 | 228.2 | 7.2 | % | ||||||||
Raízen Combustíveis (fuel distribution)(1)
|
43,532.2 | 35,096.1 | 24.0 | % | ||||||||
Fuels
|
43,516.0 | 35,032.8 |
|
%
|
||||||||
Other services
|
16.2 | 63.3 |
|
%
|
||||||||
Rumo (logistics)
|
712.8 | 572.0 | 24.6 | % | ||||||||
Transportation
|
549.4 | 413.4 | 32.9 | % | ||||||||
Loading
|
150.0 | 141.0 | 6.4 | % | ||||||||
Other
|
13.3 | 17.6 | (24.3) | % | ||||||||
Radar (land development)(2)
|
51.9 | - | 100 | % | ||||||||
Property sale
|
4.7 | - | 100 | % | ||||||||
Land lease
|
47.1 | - | 100 | % | ||||||||
Comgás (natural gas retail)(3)
|
2,399.0 | - | 100 | % | ||||||||
Industrial
|
1,535.9 | - | 100 | % | ||||||||
Residential
|
203.3 | - | 100 | % | ||||||||
Thermo generation
|
148.7 | - | 100 | % | ||||||||
Cogeneration
|
112.7 | - | 100 | % | ||||||||
Automotive
|
77.5 | - | 100 | % | ||||||||
Commercial
|
84.5 | - | 100 | % | ||||||||
Construction revenue
|
230.0 | - | 100 | % | ||||||||
Other
|
6.4 | - | 100 | % | ||||||||
Other businesses
|
1,422.6 | 1,065.5 | 33.5 | % | ||||||||
Lubricants (CLE)
|
1,255.5 | 1,018.8 | 23.2 | % | ||||||||
Other products and services
|
167.1 | 46.7 | 257.7 | % | ||||||||
Eliminations(1)
|
(26,570.2 | ) | (20,590.8 | ) | 29.0 | % | ||||||
Net sales
|
30,016.5 | 23,390.5 | 28.3 | % |
(1)
|
The information of Raízen Energia and Raízen Combustíveis and the discussion herein represents 100% of the revenues generated by the businesses. As from June 1, 2011, the results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in our consolidated financial statements.
|
(2)
|
For a nine-month period from the date of acquisition of Radar.
|
(3)
|
For a five-month period from the date of acquisition of Comgás.
|
Cost of Sales and Services
|
For Fiscal Year Ended March 31,
|
|||||||||||
2013
|
2012
(restated)
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (1)
|
(6,881.9 | ) | (5,578.2 | ) | 23.4 | % | ||||||
Sugar
|
(2,997.4 | ) | (2,802.1 | ) | 7.0 | % | ||||||
Ethanol
|
(3,005.0 | ) | (2,454.0 | ) | 22.5 | % | ||||||
Energy cogeneration
|
(399.0 | ) | (86.1 | ) | 363.4 | % | ||||||
Other products and services
|
(480.5 | ) | (236.0 | ) | 103.6 | % | ||||||
Raízen Combustíveis (1)
|
(41,199.0 | ) | (33,137.3 | ) | 24.3 | % | ||||||
Rumo (logistics)
|
(420.6 | ) | (394.1 | ) | 6.7 | % | ||||||
Radar (2)
|
(1.7 | ) | - | 100 | % | |||||||
Comgás (3)
|
(1,738.3 | ) | - | 100 | % | |||||||
Other businesses
|
(1,050.7 | ) | (732.9 | ) | 43.4 | % | ||||||
Eliminations (1):
|
24,608.0 | 18,954.9 | 29.8 | % | ||||||||
Cost of sales and services
|
(26,684.2 | ) | (20,887.6 | ) | 27.8 | % |
(1)
|
The information for Raízen Energia and Raízen Combustíveis represents 100% of the cost incurred by the businesses. As from June 1, 2011, the results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in our consolidated financial statements.
|
(2)
|
For a nine-month period from the date of acquisition of Radar.
|
(3)
|
For a five-month period from the date of acquisition of Comgás.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
(restated)
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (1)
|
(638.8 | ) | (511.4 | ) | 24.9 | % | ||||||
Raízen Combustíveis (1)
|
(1,026.9 | ) | (1,095.6 | ) | (6.3) | % | ||||||
Comgás (2)
|
(259.8 | ) | - | 100 | % | |||||||
Other businesses
|
(199.7 | ) | (187.5 | ) | 6.5 | % | ||||||
Eliminations (1):
|
832.9 | 742.2 | 12.2 | % | ||||||||
Selling expenses
|
(1,292.3 | ) | (1,052.3 | ) | 22.8 | % |
(1)
|
The information of Raízen Energia and Raízen Combustíveis represents 100% of the selling expenses of the businesses. As from June 1, 2011, the results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in our consolidated financial statements.
|
(2)
|
For a five-month period from the date of acquisition of Comgás.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
(restated)
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (1)
|
(490.2 | ) | (454.0 | ) | 8.0 | % | ||||||
Raízen Combustíveis (1)
|
(361.6 | ) | (349.8 | ) | 3.4 | % | ||||||
Rumo
|
(58.1 | ) | (41.5 | ) | 40.0 | % | ||||||
Radar (2)
|
(14.9 | ) | - | 100 | % | |||||||
Comgás (3)
|
(127.7 | ) | - | 100 | % | |||||||
Other businesses
|
(200.0 | ) | (132.8 | ) | 50.5 | % | ||||||
Eliminations (1):
|
407.0 | 344.1 | 18.3 | % | ||||||||
General and administrative expenses
|
(845.5 | ) | (634.0 | ) | 33.4 | % |
(1)
|
The information for Raízen Energia and Raízen Combustíveis represents 100% of the general and administrative expenses incurred by the businesses. As from June 1, 2011, the results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in our consolidated financial statements.
|
(2)
|
For a nine-month period from the date of acquisition of Radar.
|
(3)
|
For a five-month period from the date of acquisition of Comgás.
|
For Fiscal Year Ended March 31,
|
||||||||
2013
|
2012
(restated)
|
|||||||
(in millions of reais)
|
||||||||
Financial expenses
|
(781.3 | ) | (586.0 | ) | ||||
Financial income
|
262.9 | 203.8 | ||||||
Foreign exchange variation, net
|
(146.8 | ) | (93.9 | ) | ||||
Derivatives, net
|
45.6 | (4.4 | ) | |||||
(619.6 | ) | (480.5 | ) |
For Fiscal Year Ended March 31,
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Consolidated Income Statement
|
||||||||||||
Net sales
|
23,390.5 | 18,063.5 | 29.5 | % | ||||||||
Cost of goods sold
|
(20,887.6 | ) | (15,150.1 | ) | 37.9 | % | ||||||
Gross profit
|
2,502.8 | 2,913.4 | 14.1 | % | ||||||||
Selling expenses
|
(1,052.3 | ) | (1,026.0 | ) | 2.6 | % | ||||||
General and administrative expenses
|
(634.0 | ) | (545.4 | ) | 16.2 | % |
For Fiscal Year Ended March 31,
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Other, net
|
122.4 | (33.8 | ) | 462.1 | % | |||||||
Gain on the de-recognition of subsidiaries to form the Joint Venture
|
2,752.7 | — | — | |||||||||
Operations income / (expenses)
|
1,188.9 | (1,605.3 | ) | 174.1 | % | |||||||
Income before financial results, equity income of associates and income taxes
|
3,691.6 | 1,308.1 | 182.2 | % | ||||||||
Equity income of associates
|
33.3 | 25.2 | 32.1 | % | ||||||||
Financial results, net
|
(480.5 | ) | (151.1 | ) | 217.9 | % | ||||||
Income before income taxes
|
3,244.5 | 1,182.2 | 174.4 | % | ||||||||
Income taxes:
|
||||||||||||
Current
|
(133.9 | ) | (85.4 | ) | 56.8 | % | ||||||
Deferred
|
(982.5 | ) | (329.1 | ) | 198.5 | % | ||||||
Profit from continuing operations
|
2,128.1 | 767.8 | 177.2 | % | ||||||||
Profit from discontinued operations, net of tax
|
64.2 | - | 100 | % | ||||||||
Net income for the year
|
2,192.3 | 767.8 | 185.5 | % | ||||||||
Net income attributable to non-controlling interests
|
(1,011.0 | ) | (296.7 | ) | 240.7 | % | ||||||
Net income attributable to owners of the Company
|
1,181.3 | 470.9 | 150.9 | % |
|
·
|
an increase of 13.4% to R$7,247.7 million in net sales in the Raízen Energia (Sugar and Ethanol), despite a difficult harvest;
|
|
·
|
an increased in the net sales of Raízen Combustíveis (Fuel Distribution) by 220.0% to R$35,096.0 million, primarily due to the formation of the Joint Venture; and
|
|
·
|
in Rumo Logística, an increased in the transportation and loading operations due to our contractual agreement with America Latina Logística S.A., or ALL, which is primarily responsible for the increase of 27.7% in its net sales to R$572.0 million.
|
For Fiscal Year Ended March 31, (1)
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (Sugar and Ethanol) net sales (1)
|
7,247.7 | 6,389.1 | 13.4 | |||||||||
Sugar
|
3,912.8 | 3,853.4 | 1.5 | |||||||||
Ethanol
|
2,871.5 | 2,203.7 | 30.3 | |||||||||
Energy cogeneration
|
235.1 | 194.9 | 20.6 | |||||||||
Other products and services
|
228.2 | 137.1 | 66.4 |
For Fiscal Year Ended March 31, (1)
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Combustíveis (fuel distribution) net sales (1)
|
35,096.0 | 10,966.2 | 220.0 | |||||||||
Fuels
|
35,032.8 | 10,895.6 | 221.6 | |||||||||
Other services
|
63.2 | 70.6 | (70.8 | ) | ||||||||
Rumo (logistics) net sales
|
572.0 | 448.0 | 27.7 | |||||||||
Transportation
|
413.4 | 305.8 | 35.2 | |||||||||
Loading
|
141.0 | 118.1 | 19.4 | |||||||||
Other
|
17.6 | 24.1 | (27.0 | ) | ||||||||
Other businesses net sales
|
1,065.5 | 829.0 | 28.5 | |||||||||
Lubricants (CLE)
|
1,018.8 | 829.0 | 22.9 | |||||||||
Other products and services
|
46.7 | ― | 100 | |||||||||
Eliminations (1):
|
(20,590.7 | ) | (568.9 | ) | 3,519.4 | |||||||
Net sales
|
23,390.5 | 18,063.4 | 29.5 |
(1)
|
The information of Raízen Energia and Raízen Combustíveis and the discussion herein represents 100% of the revenues generated by the businesses. As from June 1, 2011 results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in the Company’s financial statements. See note 5 to our audited consolidated financial statements.
|
|
·
|
the 7.1% decline in the volume of sugar sold in fiscal year 2012 as compared to fiscal year 2011, which was offset by the higher average sugar price per ton, which increased 9.3% to R$981.3 from R$898.0 over the same periods.
|
|
·
|
Higher volume sold in the foreign market due to more attractive prices, which resulted in a R$229.2 million increase in total net sales. Lower volumes were sold in fiscal year 2012.
|
|
·
|
The increase in net results were obtained despite adverse weather conditions that severely affected the Central-South region of Brazil, resulting in a decrease of 2.4% in the amount of sugarcane crushed in fiscal year 2012 compared to fiscal year 2011, mitigated by improvements in harvesting mechanization, with 85.9% of production mechanized in fiscal year 2012, as compared to 79.5% in fiscal year 2011, an improvement of 6.4%.
|
|
·
|
sales of R$334.1 million, due to a 32.2% increase in the average price of ethanol in the domestic and international markets; and
|
|
·
|
an increase of 72.8% of ethanol sold in the international markets and a 48.0% increase on the average price per cbm into the international markets, when compared with fiscal year 2011.
|
|
·
|
an expansion in the service stations network to 4,545 locations in fiscal year 2012 from 1,710 (Cosan service station only) in fiscal year 2011;
|
|
·
|
an increase of 201% in the volume of gasoline sold representing revenues of R$14,674.4 million;
|
|
·
|
an increase of 5.5% in the volume of jet fuel sold resulting in revenues of R$3,632 million in fiscal year 2012 compared to fiscal year 2011; and
|
|
·
|
Ethanol sales in fiscal year 2012 totaled R$2,117.9 million, resulting in an increase of 160.0% when compared to fiscal year 2011.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia cost of goods sold (1)
|
(5,578.2 | ) | (4,400.5 | ) | 26.8 | |||||||
Sugar
|
(2,802.1 | ) | (2,609.1 | ) | 7.4 | |||||||
Ethanol
|
(2,454.0 | ) | (2,016.1 | ) | 21.7 | |||||||
Energy cogeneration
|
(86.1 | ) | (102.3 | ) | (15.8 | ) | ||||||
Other products and services
|
(236.0 | ) | 327.1 | (172.1 | ) | |||||||
Raízen Combustíveis cost of goods sold (1)
|
(33,137.3 | ) | (10,499.3 | ) | 215.6 | |||||||
Rumo (logistics) cost of services provided
|
(394.1 | ) | (316.4 | ) | 24.6 | |||||||
Other businesses cost of goods sold
|
(732.9 | ) | (514.9 | ) | 42.3 | |||||||
Eliminations(1):
|
18,954.6 | 581.1 | 3,162.4 | |||||||||
Cost of goods sold
|
(20,887.6 | ) | (15,150.1 | ) | 37.9 |
(1)
|
The information of Raízen Energia and Raízen Combustíveis represents 100% of the cost incurred by the businesses. As from June 1, 2011 results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in the Company´s financial statements. See note 5 to our audited consolidated financial statements.
|
|
·
|
A 24.8% increase in the TSR/kg cost, up from R$0.4022 in fiscal year 2011 to R$0.5018 in fiscal year 2012, directly impacting the cost of sugarcane from suppliers and the cost of land leases;
|
|
·
|
An increase in the cost of proprietary sugarcane due to the rise in leasing costs—up from R$10.4 per tonne of sugarcane in fiscal year 2011 to R$17 per tonne in fiscal year 2012;
|
|
·
|
A decrease in the TSR level to 136.5 kg/tonne in fiscal year 2012, compared to 138.5 kg/ton in fiscal year 2011.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (1)
|
(511.4 | ) | (568.3 | ) | (10.0 | ) | ||||||
Raízen Combustíveis (1)
|
(1,095.6 | ) | (280.9 | ) | 290.0 | |||||||
Rumo
|
― | ― | ― | |||||||||
Other businesses
|
(187.5 | ) | (176.8 | ) | 6.0 | |||||||
Eliminations (1):
|
742.2 | ― | 100 | |||||||||
Selling expenses
|
(1,052.3 | ) | (1,026.0 | ) | 2.6 |
(1)
|
The information of Raízen Energia and Raízen Combustíveis represents 100% of the revenues, costs and expenses of the businesses. As from June 1, 2011 results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in the Company’s financial statements. See note 5 to our audited consolidated financial statements.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2012
(restated)
|
2011
|
% Variation
|
||||||||||
(in millions of reais, except percentages)
|
||||||||||||
Raízen Energia (1)
|
(454.0 | ) | (393.0 | ) | 15.5 | |||||||
Raízen Combustíveis (1)
|
(349.8 | ) | (91.5 | ) | 282.3 | |||||||
Rumo
|
(41.5 | ) | (29.1 | ) | 43.0 | |||||||
Other businesses
|
(132.8 | ) | (31.8 | ) | 317.6 | |||||||
Eliminations (1):
|
344.1 | - | 100 | |||||||||
General and administrative expenses
|
(634.0 | ) | (545.4 | ) | 16.2 |
(1)
|
The information of Raízen Energia and Raízen Combustíveis represents 100% of the cost incurred by the businesses. As from June 1, 2011 results of Raízen Energia and Raízen Combustíveis are proportionally consolidated at 50% in the Company’s financial statements. See note 5 to our audited consolidated financial statements.
|
For Fiscal Year Ended March 31,
|
||||||||
2012
(restated)
|
2011
|
|||||||
(in millions of reais)
|
||||||||
Financial expenses
|
(586.0 | ) | (677.3 | ) | ||||
Financial income
|
203.8 | 188.8 | ||||||
Foreign exchange variation, net
|
(93.9 | ) | 282.7 | |||||
Derivatives, net
|
(4.4 | ) | 54.7 | |||||
(480.5 | ) | (151.1 | ) |
|
·
|
our ability to generate cash flow from our operations;
|
|
·
|
the level of our outstanding indebtedness and related accrued interest, which affects our net financial expenses;
|
|
·
|
prevailing Brazilian and international interest rates, which affects our debt service requirements;
|
|
·
|
our ability to continue to borrow funds from Brazilian and international financial institutions and to obtain pre-export financing from certain of our customers;
|
|
·
|
our capital expenditure requirements, which consist primarily of investments in crop planting and the purchase of equipment;
|
|
·
|
credit ratings, including factors that may materially influence credit ratings, implications of potential changes in ratings and management’s expectations; and covenant compliance, including the implications of a breach of financial or other covenants and the company’s capacity for additional borrowing under its covenants.
|
As of March 31,
|
|||||||||||||||||||
Description
|
Index
|
Average
annual
interest rate
|
2013
|
2012
|
2011
|
Maturity Date
|
|||||||||||||
(in thousands of Reais)
|
|||||||||||||||||||
Senior Notes Due 2014
|
Dollar (USD)
|
9.5 | % | 356,600 | 322,654 | 576,814 |
August 2014
|
||||||||||||
Senior Notes Due 2017
|
Dollar (USD)
|
7.0 | % | 407,381 | 368,601 | 658,954 |
February 2017
|
||||||||||||
BNDES
|
URTJLP
|
7.64 | % | 724,613 | 683,586 | 1,308,034 |
October 2025
|
||||||||||||
Pre-fixed
|
4.5 | % | 192,460 | 185,568 | 242,508 |
July 2020
|
|||||||||||||
UMBND
|
6.50 | % | 16,621 | 18,365 | 38,947 |
July 2019
|
|||||||||||||
Dollar (USD)
|
6.86 | % | — | 11 | — |
November 2012
|
|||||||||||||
Credit Notes
|
CDI
|
7.39 | % | 159,500 | — | — |
February 2014
|
||||||||||||
Bank Credit Notes
|
CDCA
|
0.6%+CDI
|
— | — | 31,378 |
December 2011
|
|||||||||||||
ACC
|
Dollar (USD)
|
1.90 | % | 25,533 | 138,369 | 228,229 |
June 2013
|
||||||||||||
Resolution 2471 (PESA)
|
IGP-M
|
9.77 | % | 348,047 | 316,094 | 674,392 |
April 2023
|
||||||||||||
Pre-fixed
|
3.0 | % | 50 | 53 | 114 |
October 2025
|
|||||||||||||
Rural Credits
|
Pre-fixed
|
5.5 | % | 20,833 | 20,460 | 92,352 |
November 2013
|
||||||||||||
Working capital
|
Dollar (USD) + Libor
|
1.78 | % | 453,509 | 410,002 | — |
September 2016
|
||||||||||||
IGP-M
|
20.52 | % | — | 88 | — |
December 2012
|
|||||||||||||
Pre fixed
|
14.00 | % | 3,927 | 5,332 | — |
March 2015
|
As of March 31,
|
|||||||||||||||||||
Description
|
Index
|
Average
annual
interest rate
|
2013
|
2012
|
2011
|
Maturity Date
|
|||||||||||||
(in thousands of Reais)
|
|||||||||||||||||||
Pre-Payments
|
Dollar (USD) + Libor
|
4.18 | % | 459,145 | 507,454 | 736,472 |
February 2016
|
||||||||||||
Total Raízen consolidated (50%)
|
3,168,219 | 2,976,651 | 4,588,194 | ||||||||||||||||
Senior Notes Due 2018
|
Pre-fixed
|
9.5 | % | 852,705 | — | — |
March 2018
|
||||||||||||
Senior Notes Due 2023
|
Dollar (USD)
|
5.0 | % | 1,009,277 | — | — |
March 2023
|
||||||||||||
Perpetual Notes
|
Dollar (USD)
|
8.25 | % | 1,025,671 | 930,094 | 1,236,209 |
November 2015
|
||||||||||||
Credit Notes
|
CDI
|
7.39 | % | 369,486 | 341,226 | 303,719 |
February 2014
|
||||||||||||
Dollar (USD)
|
3.07 | % | — | 52,891 | 324,247 |
October 2012
|
|||||||||||||
Working capital
|
Dollar (USD) + Libor
|
1.78 | % | 206,089 |
September 2016
|
||||||||||||||
Dollar (USD) + Libor
|
4.46 | % | — |
September 2016
|
|||||||||||||||
Finame
|
Pre fixed
|
4.59 | % | 372,559 | 397,515 | 517,842 |
September 2022
|
||||||||||||
URTJLP
|
7.17 | % | 410,442 | 337,091 | 187,336 |
November 2022
|
|||||||||||||
UMBND
|
8.36 | % | — | 16 | — |
October 2012
|
|||||||||||||
Leasing
|
Pre-fixed
|
15.02 | % | 107 | — | — |
June 2014
|
||||||||||||
100.00% CDI
|
— | 2,020 | — | — |
October 2014
|
||||||||||||||
Foreign loans
|
GDP + Libor Semiannual
|
4.32 | % | 167,021 | — | — |
June 2017
|
||||||||||||
Loan EIB
|
Dollar (USD) + Libor
|
2.26 | % | 528,902 | — | — |
September 2021
|
||||||||||||
Resolution 4131
|
Dollar (USD) + Libor
|
3.00 | % | 549,106 | — | — |
February 2018
|
||||||||||||
Debentures
|
CDI
|
8.62 | % | 1,417,149 | — | — |
October 2020
|
||||||||||||
Non-convertible debenture
|
CDI
|
1.50 | % | 70,321 | — | — |
August 2014
|
||||||||||||
BNDES
|
TJLP
|
7.98 | % | 709,425 | — | — |
June 2017
|
||||||||||||
Selic
|
1.80 | % | 310,358 | — | — |
October 2020
|
|||||||||||||
TJ462
|
7.80 | % | 77,477 | — | — |
October 2020
|
|||||||||||||
FINEP
|
Pre-fixed
|
5.00 | % | 89,889 | — | — |
January 2021
|
||||||||||||
Promissory note
|
103.00% CDI
|
— | 402,104 | — | — |
November 2013
|
|||||||||||||
Credit assignment `
|
CDI
|
1.38 | % | 60,886 | — | — |
May 2013
|
||||||||||||
Others
|
Several
|
Several
|
85,556 | — | 103,028 |
Several
|
|||||||||||||
Expenditure on issue of debt
|
(66,039 | ) | (21,407 | ) | (28,546 | ) | |||||||||||||
Total Cosan (excluding Raízen)
|
8,650,511 | 2,222,738 | 2,643,835 | ||||||||||||||||
Total Consolidated Debt
|
11,818,727 | 5,199,389 | 7,232,029 | ||||||||||||||||
Current
|
2,153,572 | 540,237 | 957,134 | ||||||||||||||||
Non-Current
|
9,665,155 | 4,659,152 | 6,274,895 |
|
·
|
an increase in the current portion of long-term debt, from R$540.2 million at March 31, 2012, to R$2,153.6 million at March 31, 2013 related primarily to the Comgás acquisition and the consolidation of the indebtedness of Comgás; and
|
|
·
|
an increase in cash and cash equivalents, from R$1,654.1 million at March 31, 2012, to R$2,493.2 million at March 31, 2013, related primarily to the consolidation the cash and cash equivalents of Comgás.
|
For Fiscal Year Ended March 31,
|
||||||||||||
2013
|
2012
(restated)
|
2011
|
||||||||||
(in millions of reais)
|
||||||||||||
Raízen Energia – Operational
|
||||||||||||
Biological assets
|
922.0 | 942.7 | 745.0 | |||||||||
Inter-harvest maintenance costs
|
602.3 | 605.5 | 514.2 | |||||||||
Health, safety and environmental (SSMA) & Sustaining
|
64.6 | 149.2 | 237.5 | |||||||||
Mechanization
|
205.3 | 138.3 | 214.7 | |||||||||
Projects
|
113.1 | — | — | |||||||||
Total – Operational
|
1,907.3 | 1,835.7 | 1,711.4 | |||||||||
Raízen Energia – Expansion
|
||||||||||||
Co-generation projects
|
102.7 | 462.5 | 287.6 | |||||||||
Greenfield projects
|
— | 0.4 | 66.9 | |||||||||
Other expansion projects
|
394.5 | 279.2 | 348.4 | |||||||||
Total – Expansion
|
497.2 | 742.2 | 702.9 | |||||||||
Raízen Energia – Total
|
2,404.6 | 2,577.9 | 2,414.3 | |||||||||
Raízen Combustíveis
|
677.2 | 491.7 | 191.6 | |||||||||
Total Raízen
|
3,081.8 | 3,069.6 | 2,605.9 | |||||||||
Raízen consolidated (50%)
|
1,540.9 | 1,765.2 | — | |||||||||
Rumo
|
266.7 | 269.0 | 427.9 | |||||||||
Radar
|
0.8 | — | — | |||||||||
Comgás
|
294.4 | — | — | |||||||||
Other business
|
75.4 | 102.3 | 3.3 | |||||||||
Total Cosan (excluding Raízen)
|
637.1 | 371.3 | 431.2 | |||||||||
Total consolidated capital expenditures
|
2,178.0 | 2,136.6 | 3,037.1 |
Fiscal Year
|
As of March 31,
2013 (*)
|
|||
2013-2014 harvest
|
2,947,595 | |||
2015-2016 harvest
|
1,028,000 | |||
Total
|
3,975,595 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
Fiscal Year
|
As of March 31,
2013 (*)
|
|||
2014
|
808,850 | |||
2015
|
175,000 | |||
Total
|
983,850 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
Electric power
|
Steam
|
|||||||
Fiscal Year
|
As of March 31,
2013 (*)
|
|||||||
2014
|
1,944,924 | 170,000 | ||||||
2015
|
1,677,904 | — | ||||||
2016
|
1,669,144 | — | ||||||
2017
|
1,669,144 | — | ||||||
After 2017
|
13,243,863 | — | ||||||
Total
|
20,204,979 | 170,000 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
Fiscal Year
|
As of March 31,
2013 (*)
|
|||
2014
|
26,410,050 | |||
2015
|
24,205,206 | |||
2016
|
20,982,447 | |||
After 2016
|
123,972,354 | |||
Total
|
195,570,057 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
Fiscal Year
|
2013
|
|||
2014
|
7,815,953 | |||
2015
|
616,618 | |||
Total
|
8,432,571 |
Fiscal Year
|
2013
|
|||
2014
|
1,596,112 | |||
2015
|
1,532,112 | |||
Total
|
3,128,224 |
Fiscal Year
|
2013
|
|||
2014
|
206,760 | |||
2015
|
— | |||
Total
|
2013 | (*) | 2012 | 2011 | |||||||||
Minimum installment
|
210,368 | 214,949 | 155,800 | |||||||||
Variable installment
|
298,641 | 280,930 | 186,484 | |||||||||
Total
|
509,009 | 495,879 | 342,284 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%
|
2013 | (*) | 2012 | ||||||
Within 1 year
|
560,629 | 553,815 | ||||||
Over 1 year, less than 5 years
|
1,778,019 | 1,673,249 | ||||||
More than 5 years
|
1,420,455 | 1,676,005 | ||||||
Total
|
3,759,103 | 3,903,069 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%
|
Fiscal Year
|
2013
|
|||
2014
|
39,464 | |||
2015
|
52,173 | |||
2016
|
57,787 | |||
2017
|
62,811 | |||
Total
|
212,235 |
2013
|
2012
|
|||||||
Within 1 year
|
2,888 | 1,860 | ||||||
Over 1 year, less than 5 years
|
566 | 526 | ||||||
Total
|
3,454 | 2,386 |
Fiscal Year
|
2013
|
|||
2014
|
48,380 | |||
2015
|
64,944 | |||
2016
|
65,057 | |||
2017
|
65,171 | |||
2018
|
65,171 | |||
Total
|
308,723 |
Fiscal Year
|
2013(*) | |||
2014
|
891,410 | |||
2015
|
430,600 | |||
2016
|
288,000 | |||
2017
|
232,000 | |||
Total
|
1,842,010 |
(*)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%
|
Total
|
Less than 1 year
|
1 to 2 years
|
3 to 5 years
|
More than 5 years
|
||||||||||||||||
(in millions of reais)
|
||||||||||||||||||||
Long-term debt obligations (1)
|
13,926.4 | 2,153.6 | 1,315.8 | 6,054.8 | 4,402.1 | |||||||||||||||
Operating lease obligations (2)
|
28.2 | 28.2 | ― | ― | ― | |||||||||||||||
Trade payables
|
1,387.7 | 1,387.7 | ― | ― | ― | |||||||||||||||
Refis
|
1,216.4 | 246.0 | 64.2 | 189.6 | 716.5 | |||||||||||||||
Total
|
16,558.5 | 3,815.4 | 1,380.0 | 6,244.4 | 5,118.6 |
(1)
|
Less than one year amounts include accrued interest over existing long-term debt installments.
|
(2)
|
Purchase obligations were valued at the amount of sugarcane committed by a TSR of 137.3 kg per ton, at a price of R$0.4881, per kg as defined by CONSECANA for March 2012.
|
As of March 31,
|
||||||||||||
Year
|
2014
|
2015
|
2016
|
|||||||||
March 31, 2013
|
2,947.6 | 514.0 | 514.0 |
|
·
|
R$362.4 million of export pre-payment notes due from 2012 through 2016;
|
|
·
|
R$352.4 million senior notes due February 2014
|
|
·
|
R$402.8 million senior notes due February 2017;
|
|
·
|
R$850.0 million senior notes due March 2018;
|
|
·
|
R$1,006.9 million senior notes due March 2023;
|
|
·
|
R$344.3 million PESA debt due between 2023 and 2025, payable against CTN credits;
|
|
·
|
R$1,494.4 million BNDES and Finame financing due between 2017 and 2022;
|
|
·
|
R$1,006.9 million perpetual notes with call option for Cosan beginning on November 5, 2015;
|
|
·
|
R$455.1 million working capital due between 2013 and 2016;
|
|
·
|
R$508.1 million loan from EIB due 2021;
|
|
·
|
R$1,400.0 million Debentures due 2020;
|
|
·
|
R$668.4 million Finame financing due 2022; and
|
|
·
|
R$813.5 million other debts.
|
Name
|
Initial Year of Appointment to Cosan Limited’s Board
|
Initial Year of Appointment to Cosan S.A.’s Board
|
Class(1)
|
Position Held – Cosan Limited
|
Position Held – Cosan S.A.
|
Year of Birth
|
||||||||||||
Rubens Ometto Silveira Mello
|
2007
|
2000
|
III
|
Director
|
Chairman
|
1950
|
||||||||||||
Marcus Vinicius Pratini de Moraes(2)
|
2007
|
2005
|
II
|
Director
|
— | 1939 | ||||||||||||
Marcelo Eduardo Martins
|
2009
|
2009
|
III
|
Director
|
Director
|
1966 | ||||||||||||
Mailson Ferreira da Nóbrega(2)
|
2007
|
2008
|
I |
Director
|
Director
|
1942 | ||||||||||||
Marcos Marinho Lutz
|
2007
|
— |
II
|
Director
|
— | 1969 | ||||||||||||
Pedro Isamu Mizutani
|
2007
|
2000 |
III
|
Director
|
Director
|
1959 | ||||||||||||
George E. Pataki(2)
|
2007
|
— | I |
Director
|
— | 1945 | ||||||||||||
Marcelo de Souza Scarcela Portela
|
2007
|
2009 |
II
|
Director
|
Vice Chairman
|
1961 | ||||||||||||
José Alexandre Scheinkman(2)
|
2007
|
— | I |
Director
|
— | 1948 | ||||||||||||
Burkhard Otto Cordes
|
2008
|
2005 |
II
|
Director
|
Director
|
1975 | ||||||||||||
Hélio França Filho(2)
|
2009
|
— |
III
|
Director
|
— | 1959 | ||||||||||||
Serge Varsano(2)
|
—
|
2009 | — |
—
|
Director
|
1955 | ||||||||||||
Roberto de Rezende Barbosa
|
—
|
2009 | — |
—
|
Director
|
1950 |
(1)
|
The terms of the directors expire as follows: Class I Directors at the annual general meeting referred to the fiscal year 2014; Class II Directors at the annual general meeting referred to the fiscal year 2015; and Class III Directors at the annual general meeting referred to the fiscal year 2013.
|
(2)
|
Independent director.
|
Name
|
Initial Year of Appointment to Cosan Limited
|
Initial Year of Appointment to Cosan S.A.
|
Position Held –
Cosan Limited
|
Position Held –
Cosan S.A.
|
Year of Birth
|
Rubens Ometto Silveira Mello
|
2007
|
—
|
Chief Executive Officer
|
—
|
1950
|
Marcos Marinho Lutz
|
2007
|
2009
|
Chief Commercial Officer
|
Chief Executive Officer
|
1969
|
Marcelo Eduardo Martins
|
2009
|
2009
|
Chief Financial and Investor Relations Officer
|
Chief Financial and Investor Relations Officer
|
1966
|
Marcelo de Souza Scarcela Portela
|
—
|
2009
|
—
|
Legal Vice President
|
1961
|
Nelson Roseira Gomes Neto
|
—
|
2011
|
—
|
Lubricant Vice President
|
1970
|
Colin Butterfield
|
—
|
2013
|
—
|
Executive Director
|
1973
|
Name
|
Initial Year of Appointment to Cosan
|
Position Held – Cosan
|
Nelson Roseira Gomes Neto
|
2008
|
Chief Executive Officer – CLE
|
Julio Fontana Neto
|
2009
|
Chief Executive Officer – Rumo
|
Luis Henrique Guimarães
|
2013
|
Chief Executive Officer – Comgás
|
|
·
|
pre-approve services to be provided by our independent auditor;
|
|
·
|
review auditor independence issues and rotation policy;
|
|
·
|
supervise the appointment of our independent auditors;
|
|
·
|
discuss with management and auditors major audit, accounting and internal control issues;
|
|
·
|
review quarterly financial statements prior to their publication, including the related notes, management’s report and auditor’s opinion;
|
|
·
|
review our annual report and financial statements;
|
|
·
|
provide recommendations to the board on the audit committee’s policies and practices;
|
|
·
|
review recommendations given by our independent auditor and internal audits and management’s responses;
|
|
·
|
provide recommendations on the audit committee’s by-laws; and
|
|
·
|
the receipt, retention and treatment of complaints received by the issuer regarding accounting, internal controls or auditing matters.
|
At March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
Agricultural
|
18,208 | 19,156 | 21,860 | |||||||||
Industrial
|
9,719 | 9,576 | 7,971 | |||||||||
Administrative
|
5,387 | 5,160 | 3,799 | |||||||||
Port
|
913 | 889 | 651 | |||||||||
Total
|
34,227 | 34,781 | 34,281 |
Name
|
Position Held –
Cosan Limited
|
Cosan Limited
Class A – Common Shares
|
Cosan Limited
Class B – Common Shares
|
|||||||
Rubens Ometto Silveira Mello*
|
Chairman and CEO
|
7,307,361 | 96,332,044 | |||||||
Pedro Mizutani
|
Board Member
|
10,000 | — | |||||||
Burkhard Otto Cordes
|
Board Member
|
5,000 | — |
*
|
Shares owned by Mr. Rubens Ometto Silveira Mello include the total shares of the Cosan Limited controlling group, which is not wholly-owned by him.
|
Shareholders
|
Class A Common Shares
|
%
|
Class B Common Shares
|
%
|
Total Number of Shares
|
%
|
||||||||||||||||||
Queluz Holdings Limited
|
5,241,111 | 3.00 | 66,321,766 | 68.85 | 71,562,877 | 26.44 | ||||||||||||||||||
Usina Costa Pinto S.A.
|
— | — | 30,010,278 | 31.15 | 30,010,278 | 11.09 | ||||||||||||||||||
MSOR Participações
|
1,811,250 | 1.04 | 1,811,250 | 0.67 | ||||||||||||||||||||
Usina Bom Jesus
|
255,000 | 0.15 | 255,000 | 0.09 | ||||||||||||||||||||
Gávea Funds (1)
|
30,657,762 | 17,58 | — | — | 30,657,762 | 11.33 | ||||||||||||||||||
Others
|
136,390,218 | 78.23 | — | — | 136,390,218 | 50.38 | ||||||||||||||||||
Total
|
174,355,341 | 100.0 | 96,332,044 | 100.0 | 270,687,385 | 100.0 |
(1)
|
Based on information filed on February 15, 2013 by Gávea Investimentos Ltda, GIF Venus, Ltd. and Armino Frago Neto.
|
|
·
|
setting the general strategic guidelines and direction for the Joint Venture and amending and updating the Joint Venture’s business plan;
|
|
·
|
appointing, removing or terminating members of the executive board;
|
|
·
|
determining the compensation and benefits of certain employees;
|
|
·
|
amending key policies and procedures of the Joint Venture;
|
|
·
|
adopting or amending the annual and capital budgets;
|
|
·
|
instituting or settling any litigation or dispute in excess of a specified sum or which could damage the reputation of the Joint Venture, Cosan or Shell;
|
|
·
|
selling, assigning, transferring or encumbering assets of the Joint Venture outside of the ordinary course of business in excess of a specified amount;
|
|
·
|
entering into transactions (including mergers, stock purchases or asset purchases) of which the value or purchase price exceeds a specified amount;
|
|
·
|
making capital expenditures in excess of a specified amount, subject to certain exceptions;
|
|
·
|
submitting any matters, including financial statements and reports, to the meeting of the Joint Venture’s shareholders;
|
|
·
|
entering into any contract, agreement or instrument outside of the ordinary course of business and that provides for payments in excess of a specified amount;
|
|
·
|
entering into material amendments, modifications or waivers or terminating any contract where payment obligations exceed a specified amount;
|
|
·
|
making any decision to borrow money or guarantee the payment or performance of any obligation in excess of a specified amount or to prepay indebtedness of a specified amount;
|
|
·
|
creating any encumbrance over or the issuance of any Joint Venture securities or any option relating to any Joint Venture securities, subject to certain exceptions;
|
|
·
|
approving the credit limits or the extension of credit to any customer of the Joint Venture in excess of a specified amount; and
|
|
·
|
entering into, amending, terminating or renewing any insurance policy.
|
|
·
|
we are a holding company, and therefore, our ability to pay dividends will depend on our ability to receive distributions from our subsidiaries, particularly our subsidiary Cosan S.A.;
|
|
·
|
our subsidiaries may become subject to covenants restricting their ability to distribute dividends under credit facilities, term loans or other indebtedness;
|
|
·
|
any imposition of restrictions on conversions and remittances by the Brazilian government could hinder or prevent us from converting into U.S. dollars or other foreign currencies and remitting abroad dividends of our Brazilian subsidiaries;
|
|
·
|
our shareholders have no contractual or other legal rights to dividends pursuant to Bermuda law; and
|
|
·
|
we may not have sufficient cash to pay dividends due to changes in our operating earnings, working capital requirements and anticipated cash needs.
|
|
·
|
a contingency reserve for an anticipated loss that is deemed probable in future years. Any amount so allocated in a previous year must be reversed in the fiscal year in which the loss had been anticipated if the loss does not occur as projected or charged off in the event that the anticipated loss occurs;
|
|
·
|
a reserve for investment projects, in an amount based on a capital expenditure budget approved by our shareholders;
|
|
·
|
an unrealized income reserve; and
|
|
·
|
a tax incentive investment reserve, included in our capital reserve accounts, in the amount of the reduction in our income tax obligations due to government tax incentive programs.
|
|
·
|
first, up to 5% of net profit to the respective company’s legal reserve, which may not exceed a specified amount, the lower of 20% of the respective company’s capital stock or 30% of the capital plus any capital surplus;
|
|
·
|
second, a variable amount of net profit to each shareholder based on certain tax attributes contributed by it to the Joint Venture; Cosan is entitled to receive preferential dividends equivalent to the amount of any tax savings from the amortization of goodwill it contributes to the Joint Venture. Similarly, Shell is entitled to receive preferential dividends equivalent to the amount of any tax savings from the amortization of accumulated losses that it contributes to the Joint Venture;
|
|
·
|
third, a nominal amount of net profit to the holders of certain preferred shares;
|
|
·
|
fourth, 1% of net profit to the shareholders;
|
|
·
|
fifth, a variable amount, capped at a specified percentage of net profit, to the respective company’s statutory reserve for operations and projects, such amount not to exceed 80% of net profits or 80% of the respective company’s share capital; and
|
|
·
|
sixth, the distribution of the remaining amount of net profit to be determined by the shareholders.
|
COSAN LIMITED CLASS A COMMON SHARES; TICKER: CZZ
|
NYSE
(US$ per common share)
|
|||||||
High
|
Low
|
|||||||
Eleven Months Ended March 31, 2009
|
14.02 | 2.03 | ||||||
Fiscal Year Ended March 31, 2010
|
9.75 | 2.40 | ||||||
Fiscal Year Ended March 31, 2011
|
14.57 | 7.95 | ||||||
Fiscal Year Ended March 31, 2012
|
15.11 | 9.08 | ||||||
Fiscal Year Ended March 31, 2013
|
21.31 | 11.29 | ||||||
Fiscal Quarter
|
||||||||
First Fiscal Quarter 2012
|
13.35 | 10.83 | ||||||
Second Fiscal Quarter 2012
|
12.82 | 9.44 | ||||||
Third Fiscal Quarter 2012
|
12.39 | 9.08 | ||||||
Fourth Fiscal Quarter 2012
|
15.11 | 11.10 | ||||||
First Fiscal Quarter 2013
|
15.23 | 11.29 | ||||||
Second Fiscal Quarter 2013
|
15.86 | 12.27 | ||||||
Third Fiscal Quarter 2013
|
17.31 | 15.42 | ||||||
Fourth Fiscal Quarter 2013
|
21.31 | 17.53 | ||||||
Month
|
||||||||
February 2013
|
21.00 | 19.59 | ||||||
March 2013
|
21.31 | 19.43 | ||||||
April 2013
|
20.75 | 18.58 | ||||||
May 2013
|
20.95 | 18.99 | ||||||
June 2013
|
16.76 | 15.46 | ||||||
July 2013 (through July 25, 2013)
|
19.00 | 15.34 |
COSAN LIMITED BDRs REPRESENTING CLASS A COMMON SHARES; TICKER: CZLT11
|
BM&FBOVESPA
(reais per BDR)
|
|||||||
High
|
Low
|
|||||||
Eleven Months Ended March 31, 2009
|
23.20 | 5.40 | ||||||
Fiscal Year Ended March 31, 2010
|
17.65 | 5.78 | ||||||
Fiscal Year Ended March 31, 2011
|
24.15 | 14.89 | ||||||
Fiscal Year Ended March 31, 2012
|
27.90 | 15.70 | ||||||
Fiscal Year Ended March 31, 2013
|
42.40 | 22.99 | ||||||
Fiscal Quarter
|
||||||||
First Fiscal Quarter 2012
|
20.37 | 16.65 | ||||||
Second Fiscal Quarter 2012
|
19.27 | 15.02 | ||||||
Third Fiscal Quarter 2012
|
21.86 | 16.67 | ||||||
Fourth Fiscal Quarter 2012
|
27.35 | 19.61 | ||||||
First Fiscal Quarter 2013
|
27.45 | 22.99 | ||||||
Second Fiscal Quarter 2013
|
32.50 | 24.80 | ||||||
Third Fiscal Quarter 2013
|
36.00 | 31.70 | ||||||
Fourth Fiscal Quarter 2013
|
42.40 | 35.89 |
COSAN LIMITED BDRs REPRESENTING CLASS A COMMON SHARES; TICKER: CZLT11
|
BM&FBOVESPA
(reais per BDR)
|
|||||||
High
|
Low
|
|||||||
Month
|
||||||||
February 2013
|
41.70 | 39.25 | ||||||
March 2013
|
42.40 | 39.44 | ||||||
April 2013
|
41.70 | 37.30 | ||||||
May 2013
|
43.00 | 40.69 | ||||||
June 2013
|
40.85 | 34.69 | ||||||
July 2013 (through July 25, 2013)
|
37.50 | 35.40 |
COSAN S.A. IND. E COM COMMON SHARES; TICKER: CSAN3
|
BM&FBOVESPA
(reais per common share)
|
|||||||
High
|
Low
|
|||||||
Eleven Months Ended March 31, 2009
|
33.15 | 8.54 | ||||||
Fiscal Year Ended March 31, 2010
|
25.60 | 10.08 | ||||||
Fiscal Year Ended March 31, 2011
|
28.85 | 18.00 | ||||||
Fiscal Year Ended March 31, 2012
|
34.01 | 19.13 | ||||||
Fiscal Year Ended March 31, 2013
|
47.99 | 28.47 | ||||||
Fiscal Quarter
|
||||||||
First Fiscal Quarter 2012
|
25.71 | 20.38 | ||||||
Second Fiscal Quarter 2012
|
24.99 | 19.13 | ||||||
Third Fiscal Quarter 2012
|
27.45 | 22.54 | ||||||
Fourth Fiscal Quarter 2012
|
34.01 | 26.17 | ||||||
First Fiscal Quarter 2013
|
33.79 | 28.47 | ||||||
Second Fiscal Quarter 2013
|
37.15 | 29.45 | ||||||
Third Fiscal Quarter 2013
|
42.37 | 36.80 | ||||||
Fourth Fiscal Quarter 2013
|
47.99 | 42.11 | ||||||
Month
|
||||||||
February 2013
|
47.85 | 45.25 | ||||||
March 2013
|
47.99 | 44.45 | ||||||
April 2013
|
47.50 | 42.30 | ||||||
May 2013
|
49.02 | 46.15 | ||||||
June 2013
|
46.68 | 41.34 | ||||||
July 2013 (through July 25, 2013)
|
44.00 | 41.75 |
|
·
|
import, export, produce and sell ethanol, sugar, sugarcane and other sugar by-products;
|
|
·
|
distribute and sell fuel and other fuel by-products;
|
|
·
|
produce and market electricity, steam and other co-generation by-products;
|
|
·
|
render technical services related to the activities mentioned above; and
|
|
·
|
hold equity interests in other companies.
|
|
·
|
appointment of the chief executive officer of our company or any of its subsidiaries (including successors thereof);
|
|
·
|
changes to the core business strategy of our company or any of its subsidiaries;
|
|
·
|
change name or corporate purpose of our company or any of its subsidiaries;
|
|
·
|
amendments to any rights of the class B series 1 common shares;
|
|
·
|
any recapitalization, stock split, combination, reclassification or similar action affecting equity interests in our company or any of its subsidiaries;
|
|
·
|
redemption, capital reduction or other acquisition for value of any shares of equity interests in our company or any of its subsidiaries;
|
|
·
|
any transaction or series of transactions resulting in a spin-off, delisting, merger, amalgamation, reorganization or combination of or by our company or any of its subsidiaries with, or any acquisition of, another person involving an amount in excess of US$250 million;
|
|
·
|
any sale, lease, assignment, transfer or other disposition of assets valued in the aggregate, in excess of US$250 million;
|
|
·
|
any voluntary liquidation, reorganization, dissolution or winding-up of, or a voluntary filing for bankruptcy protection by our company or any of its subsidiaries;
|
|
·
|
the approval of the limit of the compensation of members of the board of directors or executive officers of our company or any of its subsidiaries;
|
|
·
|
the making of any investment in excess of US$250 million other than investments in the ordinary course of business;
|
|
·
|
entering into any Joint Venture, partnership or any similar arrangement other than in the ordinary course of business;
|
|
·
|
any related-party transactions;
|
|
·
|
the incurrence of any liens on properties valued, in the aggregate, in excess of US$250 million;
|
|
·
|
amendment of the provisions of any of the foregoing actions or events; and
|
|
·
|
agreeing to, or otherwise committing to take, any of the foregoing actions.
|
|
·
|
any merger, consolidation or amalgamation of the Company with an interested shareholder;
|
|
·
|
any disposition or security arrangement with or for the benefit of any interested shareholder involving any of our assets, securities or commitments or those of any subsidiary or any interested shareholder that has an aggregate fair market value and/or involves aggregate commitments of US$250 million or more or constitutes more than 10% of the book value of the total assets or 10% of the shareholders equity of the entity in question;
|
|
·
|
the adoption of any plan for our liquidation or dissolution or for the discontinuation into another jurisdiction, unless proposed or adopted independently of any interested shareholder; or
|
|
·
|
any reclassification of our shares or other securities, or recapitalization, or any merger, consolidation or amalgamation with any of our subsidiaries or any other transaction that has the effect of increasing the proportionate share of any class of shares beneficially owned by an interested shareholder.
|
|
·
|
a classified board of directors with staggered three-year terms;
|
|
·
|
restrictions on the time period in which directors may be nominated;
|
|
·
|
the affirmative vote of a majority of our directors then in office and a majority of all votes cast at a general meeting or, if not approved by a majority of the directors in office, at least 66 2/3% of all votes attaching to all shares then in issue for amalgamation and other business combination transactions; and
|
|
·
|
the tag-along rights described under “—Tag-Along Rights.”
|
|
·
|
appoint at least one representative in Brazil with powers to take actions relating to the investment;
|
|
·
|
appoint an authorized custodian in Brazil for the investments, which must be a financial institution duly authorized by the Central Bank and the CVM; and
|
|
·
|
through its representative, register itself as a foreign investor with the CVM and register the investment with the Central Bank.
|
|
·
|
a financial institution;
|
|
·
|
a regulated investment company;
|
|
·
|
a dealer or trader in securities;
|
|
·
|
holding our common shares as part of a “straddle,” integrated transaction or similar transaction;
|
|
·
|
a person whose functional currency for U.S. federal income tax purposes is not the U.S. dollar;
|
|
·
|
a partnership for U.S. federal income tax purposes;
|
|
·
|
a tax-exempt entity;
|
|
·
|
a person that owns or is deemed to own ten percent or more of our voting stock; or
|
|
·
|
a person who acquires our common shares pursuant to the exercise of any employee stock option or otherwise as compensation.
|
|
·
|
a citizen or individual resident of the United States;
|
|
·
|
a corporation created or organized in or under the laws of the United States or any state therein or the District of Columbia, or
|
|
·
|
an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source.
|
Fair Value -
Net Sales (**)
|
Sales Volume
|
Market Risk -
10% Price Decrease
|
||||||||||
(in millions of reais)
|
(thousand tonnes of sugar or thousand liters of ethanol)
|
(in millions of reais)
|
||||||||||
Ethanol sales volume (unhedged) in fiscal year 2013
|
3,299.9 | 2,099.4 | 330.0 | |||||||||
Sugar sales volumes in the twelve months ended March 31, 2013
|
4,354.0 | 4,229.8 | 91.5 | |||||||||
Hedged sugar position at March 31, 2013 (*)
|
3,438.9 | 3,269.6 | - | |||||||||
VHP sugar (NY no. 11)
|
3,438.9 | 3,269.6 | - | |||||||||
White sugar (LIFFE no. 5)
|
- | - | - | |||||||||
Unhedged sugar position at March 31, 2013
|
915.1 | 960.2 | 91.5 |
(*)
|
includes derivative futures and firm commitments with customers where there are already fixed prices for the sugar to be sold.
|
(**)
|
Represents 100% of the financial instruments of Raízen Energia, of which the Cosan S.A. proportionately consolidates only 50%.
|
Fair Value -
Net Purchases
|
Commodities Risk -
10% Price Decrease
|
|||||||
(in millions of reais)
|
(in millions of reais)
|
|||||||
Total unhedged position at March 31, 2013
|
915.1 | 91.5 | ||||||
Sugarcane supplied by growers in fiscal year 2013
|
2,125.1 | 212.5 | ||||||
Sugarcane from leased land in fiscal year 2013
|
1,701.4 | 170.1 | ||||||
Net unhedged position at March 31, 2013
|
4,741.6 | 474.1 |
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Maturity date
|
Notional
|
Notional
|
Fair Value
|
|||||||||||||
(unit)
|
(R$ thousand)
|
(R$ thousand)
|
||||||||||||||||||
Financial instruments contracted by Raizen Energia
|
||||||||||||||||||||
Composition of balance of derivative financial instruments designated in hedge accounting
|
||||||||||||||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
May-13
|
288,151 | T | 235,872 | 9,948 | ||||||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Jul-13
|
420,339 | T | 389,275 | 58,964 | ||||||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Oct-13
|
491,513 | T | 460,292 | 64,231 | ||||||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Mar-14
|
24,995 | T | 24,394 | 3,254 | ||||||||||||
Future
|
Sold
|
ICE
|
Sugar#5
|
May-13
|
3,000 | T | 3,021 | (20 | ) | |||||||||||
Future
|
Sold
|
ICE
|
Sugar#5
|
Aug-13
|
4,300 | T | 4,347 | 68 | ||||||||||||
Sub-total of sugar futures sold
|
1,232,298 | T | 1,117,201 | 136,445 | ||||||||||||||||
Composition of balance of derivative financial instruments non-designated in hedge accounting
|
||||||||||||||||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
May-13
|
(17,882 | )T | (15,078 | ) | (1,058 | ) | ||||||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
Jul-13
|
(9,246 | )T | (7,633 | ) | (367 | ) | ||||||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
Oct-13
|
(1,930 | )T | (1,679 | ) | (123 | ) | ||||||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
Mar-14
|
(3,556 | )T | (3,114 | ) | (106 | ) | ||||||||||
Sub-total of sugar future purchased
|
(32,614 | )T | (27,504 | ) | (1,654 | ) | ||||||||||||||
Call
|
Purchased
|
NYBOT
|
Sugar#11
|
Jul-13
|
(10,160 | )T | (8,571 | ) | 99 | |||||||||||
Sub-total of sugar purchased
|
(10,160 | )T | (8,571 | ) | 99 | |||||||||||||||
Sub-total of Sugar
|
1,189,524 | T | 1,081,126 | 134,890 | ||||||||||||||||
Future
|
Sold
|
BM&FBovespa
|
EthanolHidrated
|
Mar-13
|
28,380m³ | 33,710 | (71 | ) | ||||||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Mar-13
|
– | – | 1,194 | |||||||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Apr-13
|
– | – | 98 | |||||||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Mar-13
|
– | – | 467 | |||||||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Apr-13
|
– | – | (323 | ) | ||||||||||||
Future
|
Sold
|
BM&F Ethanol Euro Swap
|
Ethanol
|
Jun-13
|
– | – | (13 | ) | ||||||||||||
Future
|
Sold
|
BM&F Ethanol Euro Swap
|
Ethanol
|
Jul-13
|
– | – | (29 | ) | ||||||||||||
Future
|
Sold
|
BM&F Ethanol Euro Swap
|
Ethanol
|
Aug-13
|
– | – | (23 | ) | ||||||||||||
Future
|
Sold
|
CHGOETHNL
|
Ethanol
|
May-13
|
– | – | (167 | ) | ||||||||||||
Future
|
Sold
|
CHGOETHNL
|
Ethanol
|
Jun-13
|
– | – | (113 | ) | ||||||||||||
Sub-total of ethanol futures sold
|
28,380m³ | 33,710 | 1,020 |
Notional amount/ Quantity
|
Estimated Fair value Asset (Liability)
|
Foreign Exchange Gain/ Loss – 10% FX rate Increase
|
||||||||||
U.S. dollar financial instruments outstanding as at March 31, 2013:
(in thousands of reais)
|
||||||||||||
Raízen
|
||||||||||||
Denominated debt
|
3,552,962 | 3,552,962 | 355,296 | |||||||||
Denominated receivables
|
(181,028 | ) | (181,028 | ) | (181 | ) | ||||||
Denominated derivative financial instruments (net)
|
(120,764 | ) | (3,892 | ) | (52,270 | ) | ||||||
- Future sale commitments
|
1,733,927 | (7,674 | ) | (182,763 | ) | |||||||
- Future purchase commitments
|
(1,551,765 | ) | 7,023 | 163,767 | ||||||||
- Forward sale commitments
|
(201,060 | ) | (3,574 | ) | (23,688 | ) | ||||||
- Forward purchase commitments
|
213,850 | 3,823 | 23,594 | |||||||||
- Exchange lock sale commitments
|
(315,716 | ) | (3,489 | ) | (33,179 | ) | ||||||
Net potential impact
|
3,251,170 | 3,368,042 | 302,845 | |||||||||
Eliminate 50%
|
1,625,585 | 1,684,021 | (151,423 | ) | ||||||||
Net Potential impact — Raízen
|
1,625,585 | 1,684,021 | 151,423 |
Notional amount/ Quantity
|
Estimated Fair value Asset (Liability)
|
Foreign Exchange Gain/ Loss – 10% FX rate Increase
|
||||||||||
U.S. dollar financial instruments outstanding as at March 31, 2013:
(in thousands of reais)
|
||||||||||||
Other Cosan
|
||||||||||||
Denominated debt
|
3,479,987 | 3,479,987 | 347,999 | |||||||||
Denominated receivables
|
(16,716 | ) | (16,716 | ) | (1,671 | ) | ||||||
Denominated derivative financial instruments (net)
|
284,365 | 135,848 | 245,652 | |||||||||
- Exchange lock commitments
|
284,365 | 135,848 | 245,652 | |||||||||
Net potential impact Other Cosan
|
3,747,636 | 3,599,119 | 591,979 | |||||||||
Consolidated net potential impact
|
5,373,221 | 5,283,140 | 743,402 |
At March 31,
|
||||||||||||
2013
|
2012
|
2011
|
||||||||||
(in thousands of reais)
|
||||||||||||
Audit fees
|
R$ | 5,111 | R$ | 4,837 | R$ | 4,753 | ||||||
Audit related fees
|
530 | 1,187 | 1,352 | |||||||||
All other fees
|
- | 120 | 120 | |||||||||
Total consolidated audit fees
|
R$ | 5,641 | R$ | 6,084 | R$ | 6,225 |
1.1
|
Memorandum of Association (incorporated by reference to our amended registration statement filed on Form F-1/A with the Securities and Exchange Commission on August 9, 2007)
|
1.2
|
By-Laws (incorporated by reference to our amended registration statement filed on Form F-1/A with the Securities and Exchange Commission on August 9, 2007)
|
2.1
|
Indenture dated as of January 26, 2007 among Cosan Finance Limited, as issuer, Cosan S.A. Indústria e Comércio and Usina Da Barra S.A.—Açúcar e Álcool, as guarantors, The Bank of New York, as trustee, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as principal paying agent and The Bank of New York Luxembourg S.A., as Luxembourg paying agent (incorporated by reference to our registration statement filed on Form F-1 with the Securities and Exchange Commission on June 25, 2007)
|
2.2
|
Indenture dated August 11, 2009 among CCL Finance Limited, Cosan Combustíveis e Lubrificantes S.A., (now CLE) The Bank Of New York Mellon, as Trustee, The Bank of New York Mellon Trust (Japan), Ltd., as Principal Paying Agent, and the Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Listing, Paying and Transfer Agent (incorporated by reference to Exhibit 2.4 of our annual report on Form 20-F for the year ended March 31, 2009)
|
2.3
|
Indenture dated November 5, 2010 among Cosan Overseas Limited, Cosan S.A. Indústria e Comércio, The Bank of New York Mellon, as Trustee, New York Paying Agent, Transfer Agent and Registrar, The Bank of New York Mellon (London Branch), as London Paying Agent and The Bank of New York Mellon (Luxembourg) S.A., as Paying Agent and Transfer Agent (incorporated by reference to Exhibit 2.5 of our annual report on Form 20-F for the year ended March 31, 2011)
|
2.4
|
Indenture dated March 14, 2013 among Cosan Luxembourg S.A., Cosan S.A. Indústria e Comércio, Deutsche Bank Trust Company, as Trustee, New York Paying Agent, Transfer Agent and Registrar and Deutsche Bank Luxembourg S.A., as Luxembourg Paying Agent
|
2.5
|
Indenture dated March 14, 2013 among Cosan Luxembourg S.A., Cosan S.A. Indústria e Comércio, Deutsche Bank Trust Company, as Trustee, New York Paying Agent, Transfer Agent, Registrar and Calculation Agent and Deutsche Bank Luxembourg S.A., as Luxembourg Paying Agent
|
4.1
|
Loan Agreement dated as of June 28, 2005 among Cosan S.A. Indústria e Comércio, as borrower, and International Finance Corporation (incorporated by reference to our registration statement filed on Form F-1 with the Securities and Exchange Commission on June 25, 2007)
|
4.2
|
Agreement for the Sale and Purchase of all of the Member Interests in Parent Co-Operative 1 and Parent Co-Operative 2 dated April 23, 2008, between ExxonMobil International Holdings B.V., as vendor, and the registrant’s subsidiaries Cosan S.A. Indústria e Comércio and Usina da Barra S.A. Açúcar e Álcool, as purchasers* (incorporated by reference to our Amendment to our Current Report filed on Form 6-K/A on June 10, 2009)
|
4.3
|
Framework Agreement dated August 25, 2010 among Cosan S.A. Indústria e Comércio, Cosan Distribuidora de Combustíveis S.A., Cosan Limited, Houches Holdings S.A., Shell Brasil Limitada, Shell Brazil Holding B.V., Shell Overseas Holdings Limited and Milimétrica Participações S.A., or Framework Agreement
|
|
(incorporated by reference to Exhibit 4.3 of our annual report on Form 20-F for the year ended March 31, 2010)
|
4.4
|
First Amendment to the Framework Agreement, dated as of April 7, 2011 (incorporated by reference to Exhibit 4.4 of our annual report on Form 20-F for the year ended March 31, 2011).
|
4.5
|
Second Amendment to the Framework Agreement, dated as of June 1, 2011 (incorporated by reference to Exhibit 4.5 of our annual report on Form 20-F for the year ended March 31, 2011).
|
4.6
|
Joint Venture Agreement among Cosan S.A. Indústria e Comércio, Cosan Limited, Raízen Combustíveis S.A., Raízen S.A., Shell Brazil Holding B.V., Shell Overseas Holdings Limited and Raízen Energia Participações S.A. dated June 1, 2011(incorporated by reference to Exhibit 4.6 of our annual report on Form 20-F for the year ended March 31, 2011).
|
4.7
|
Operating and Coordination Agreement dated June 1, 2011 relating to Raízen Energia Participações S.A., Raízen Combustíveis S.A. and Raízen S.A. (incorporated by reference to Exhibit 4.7 of our annual report on Form 20-F for the year ended March 31, 2011).
|
4.8
|
Shareholders Agreement of Raízen Combustíveis S.A., dated as of June 1, 2011(incorporated by reference to Exhibit 4.8 of our annual report on Form 20-F for the year ended March 31, 2011).
|
4.9
|
Shareholders Agreement of Raízen Energia Participações S.A., dated as of June 1, 2011 (incorporated by reference to Exhibit 4.9 of our annual report on Form 20-F for the year ended March 31, 2011).
|
4.10
|
Term Loan among Cosan Cayman Limited, certain Lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent for the Lenders dated April 1, 2011 (incorporated by reference to Exhibit 4.10 of our annual report on Form 20-F for the year ended March 31, 2012).
|
4.11
|
Share Purchase Agreement for the acquisition of Comma Oil & Chemicals Limited dated February 29, 2012, between Esso Petroleum Company, Limited and Cosan S.A. Industria e Comércio
|
4.12
|
Share Purchase Agreement for the acquisition of Comgás dated May 28, 2012, between Integra Investments B.V., BG Energy Holdings Limited, Provence Participações S.A. and Cosan S.A. Indústria e Comércio
|
8.1
|
Subsidiaries of the Registrant.
|
11.1
|
Code of Ethics (incorporated by reference from our exhibit to our annual report filed on Form 20-F for the Fiscal Year ended April 30, 2008).
|
12.1
|
Certification pursuant to section 302 of the Sarbanes-Oxley Act of 2002 of the Chief Executive Officer
|
12.2
|
Certification pursuant to section 302 of the Sarbanes-Oxley Act of 2002 of the Chief Financial Officer
|
13.1
|
Certification pursuant to 18 U.S.C. section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002, of the Chief Executive Officer
|
13.2
|
Certification pursuant to 18 U.S.C. section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002, of the Chief Financial Officer
|
COSAN LIMITED
|
|||
By:
|
/s/ Marcelo Eduardo Martins
|
||
Name: |
Marcelo Eduardo Martins
|
||
Title: |
Chief Financial and Investor Relations Officer
|
Cosan Limited
Consolidated Financial statements
at March 31, 2013 and
Report of Independent Registered
Public Accounting Firm
|
||
Independent auditors’ report on consolidated financial statements for the year ended March 31, 2013
|
F-3
|
Independent auditors’ report on consolidated financial statements for the fiscal year ended March 31, 2012
|
F-4 |
Consolidated statement of financial position
|
F-5
|
Consolidated statement of income
|
F-6
|
Consolidated statement of comprehensive income
|
F-7
|
Statement of changes in equity
|
F-8 - F-9
|
Consolidated statement of cash flows
|
F-10 - F-11
|
Notes to the consolidated financial statements
|
F-12 – F-119
|
March 31, 2013 and 2012
|
||||||||||||
(In thousands of Brazilian Reais – R$)
|
||||||||||||
Assets
|
2013
|
2012
|
Liabilities
|
2013
|
2012
|
|||||||||||||
Loans and borrowings (Note 19)
|
2,153,572 | 540,237 | ||||||||||||||||
Cash and cash equivalents (Note 6)
|
2,493,179 | 1,654,146 |
Derivative financial instruments (Note 25)
|
28,163 | 9,611 | |||||||||||||
Restricted cash (Note 7)
|
92,596 | 94,268 |
Trade payables
|
1,387,651 | 606,029 | |||||||||||||
Securities (Note 32)
|
105,856 | - |
Employee benefits
|
274,430 | 183,660 | |||||||||||||
Trade receivables (Note 8)
|
1,691,559 | 963,587 |
Income tax payable (Note 20)
|
37,984 | 11,973 | |||||||||||||
Derivative financial instruments (Note 32)
|
115,364 | 19,590 |
Other current tax liabilities (Note 20)
|
208,065 | 229,746 | |||||||||||||
Inventories (Note 9)
|
911,910 | 748,150 |
Dividends payable
|
67,364 | 9,725 | |||||||||||||
Receivables from related parties (Note 12)
|
202,476 | 678,374 |
Payables to related parties (Note 12)
|
117,360 | 175,488 | |||||||||||||
Advances to suppliers
|
268,516 | 159,028 |
Deferred revenue
|
41,345 | 38,040 | |||||||||||||
Income tax (Note 10)
|
152,906 | 107,561 |
Other current liabilities
|
339,441 | 269,954 | |||||||||||||
Other current tax assets (Note 10)
|
278,697 | 217,535 | ||||||||||||||||
Other financial assets (Note 11)
|
59,299 | 40,080 |
Current liabilities
|
4,655,375 | 2,074,463 | |||||||||||||
Dividends receivable
|
- | 861 | ||||||||||||||||
Non-current asset held for sale (Note 31)
|
85,426 | - |
Loans and borrowings (Note 19)
|
9,665,155 | 4,659,152 | |||||||||||||
Other assets
|
96,011 | 70,400 |
Other non-current tax liabilities (Note 20)
|
970,310 | 1,202,624 | |||||||||||||
Provision for judicial demands (Note 22)
|
1,145,348 | 1,051,677 | ||||||||||||||||
Current assets
|
6,553,795 | 4,753,580 |
Payables to related parties (Note 12)
|
318,465 | 389,718 | |||||||||||||
Pension and post-employment benefits (Note 33)
|
376,059 | 37,312 | ||||||||||||||||
Trade receivables (Note 8)
|
73,386 | 81,627 |
Deferred tax liabilities (Note 21)
|
2,616,711 | 2,443,430 | |||||||||||||
Deferred tax assets (Note 21)
|
388,732 | 543,024 |
Deferred revenue
|
174,622 | 196,260 | |||||||||||||
Advances to suppliers
|
14,856 | 21,865 |
Other non-current liabilities
|
578,291 | 631,860 | |||||||||||||
Receivables from related parties (Note 12)
|
681,512 | 753,153 | ||||||||||||||||
Other non-current tax assets (Note 10)
|
136,305 | 111,856 |
Non-current liabilities
|
15,844,961 | 10,612,033 | |||||||||||||
Judicial deposits (Note 22)
|
544,895 | 509,235 | ||||||||||||||||
Other financial assets (Note 11)
|
627,137 | 790,402 |
Total liabilities
|
20,500,336 | 12,686,496 | |||||||||||||
Derivative financial instruments (Note 32)
|
113,555 | - | ||||||||||||||||
Other non-current asset
|
434,488 | 417,107 |
Equity (Note 23)
|
|||||||||||||||
Equity method investments (Note 14)
|
168,032 | 419,029 |
Share capital
|
5,328 | 5,328 | |||||||||||||
Investment property (Note 15)
|
2,473,438 | - |
Additional paid in capital
|
3,856,849 | 3,811,808 | |||||||||||||
Biological assets (Note 16)
|
989,239 | 968,023 |
Other comprehensive income
|
(58,908 | ) | (176,500 | ) | |||||||||||
Property, plant and equipment (Note 17)
|
7,435,103 | 7,866,963 |
Retained earnings
|
2,214,459 | 1,936,687 | |||||||||||||
Intangible assets (Note 18)
|
13,161,838 | 4,932,255 | ||||||||||||||||
Equity attributable to owners of the Company
|
6,017,728 | 5,577,323 | ||||||||||||||||
Non-current assets
|
27,242,516 | 17,414,539 | ||||||||||||||||
Non-controlling interests
|
7,278,247 | 3,904,300 | ||||||||||||||||
Total equity
|
13,295,975 | 9,481,623 | ||||||||||||||||
Total assets
|
33,796,311 | 22,168,119 |
Total equity and liabilities
|
33,796,311 | 22,168,119 |
The notes are an integral part of these financial statements.
|
Cosan Limited
|
||||||
Consolidated statement of income
|
||||||
For the year ended March 31, 2013, 2012 and 2011
|
||||||
(In thousands of Brazilian Reais – R$, except earnings per share)
|
||||||
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Net sales (Note 27)
|
30,016,488 | 23,390,450 | 18,063,480 | |||||||||
Cost of sales (Note 28)
|
(26,684,266 | ) | (20,887,643 | ) | (15,150,079 | ) | ||||||
Gross profit
|
3,332,222 | 2,502,807 | 2,913,401 | |||||||||
Selling expenses (Note 28)
|
(1,292,312 | ) | (1,052,310 | ) | (1,026,000 | ) | ||||||
General and administrative expenses (Note 28)
|
(845,460 | ) | (634,015 | ) | (545,450 | ) | ||||||
Other, net (Note 30)
|
326,310 | 122,436 | (33,828 | ) | ||||||||
Gain on the de-recognition of subsidiaries
|
||||||||||||
to form the Joint Venture (Note 26)
|
- | 2,752,730 | - | |||||||||
Operating expenses
|
(1,811,462 | ) | 1,188,841 | (1,605,278 | ) | |||||||
Income before financial results, equity
|
||||||||||||
income of associates and income taxes
|
1,520,760 | 3,691,648 | 1,308,123 | |||||||||
Equity pick-up (Note 14)
|
58,860 | 33,268 | 25,187 | |||||||||
Finance expense (Note 29)
|
(951,136 | ) | (702,730 | ) | (677,366 | ) | ||||||
Finance income (Note 29)
|
331,508 | 222,270 | 526,219 | |||||||||
(560,768 | ) | (447,192 | ) | (125,960 | ) | |||||||
Profit before tax
|
959,992 | 3,244,456 | 1,182,163 | |||||||||
Income taxes (Note 21)
|
||||||||||||
Current
|
(294,638 | ) | (133,914 | ) | (85,437 | ) | ||||||
Deferred
|
153,427 | (982,458 | ) | (329,071 | ) | |||||||
(141,211 | ) | (1,116,372 | ) | (414,508 | ) | |||||||
Profit from continuing operations
|
818.781 | 2,128,084 | 767,655 | |||||||||
Profit from discontinued operation, net of tax
|
138,918 | 64,248 | - | |||||||||
Profit for the year
|
957.699 | 2,192,332 | 767,655 | |||||||||
Net income attributable to
|
||||||||||||
Owners of the company (including discontinued operation)
|
431.429 | 1,181,342 | 470,906 | |||||||||
Non-controlling interests
|
526.270 | 1,010,990 | 296,750 | |||||||||
Basic earnings per share (Note 25)
|
||||||||||||
Continued operations
|
R$ | 1.30 | R$ | 4.25 | R$ | 1.74 | ||||||
Discontinued operations
|
R$ | 0.33 | R$ | 0.15 | R$ | - | ||||||
Diluted earnings per share (Note 25)
|
||||||||||||
Continued operations
|
R$ | 1.18 | R$ | 4.25 | R$ | 1.74 | ||||||
Discontinued operations
|
R$ | 0.33 | R$ | 0.15 | R$ | - |
The notes are an integral part of these financial statements.
|
||||||
Cosan Limited
|
||||||
Consolidated statement of comprehensive income
|
||||||
For the year ended March 31, 2013, 2012 and 2011
|
||||||
(In thousands of Brazilian Reais – R$, except earnings per share)
|
||||||
2013
|
2012
|
2011
|
||||||||||
Profit for the year
|
957,699 | 2,192,332 | 767,655 | |||||||||
Other comprehensive income
|
||||||||||||
Foreign currency translation differences
|
2,585 | 20,724 | (4,049 | ) | ||||||||
Gain (loss) on cash flow hedge
|
54,083 | 238,503 | (217,117 | ) | ||||||||
Revaluation of investment property reclassified from
|
||||||||||||
property, plant and equipment
|
83,318 | - | - | |||||||||
Defined benefit plan actuarial losses
|
(52,253 | ) | (35,892 | ) | (29,448 | ) | ||||||
Changes in value of available for
|
||||||||||||
sale financial assets from securities
|
10,805 | - | - | |||||||||
Tax on other comprehensive income
|
103,121 | (68,888 | ) | 83,830 | ||||||||
Other comprehensive income for the year, net of tax
|
201,659 | 154,447 | (166,784 | ) | ||||||||
Total comprehensive income for the year
|
1,159,358 | 2,346,779 | 600,871 | |||||||||
Total comprehensive income attributable to:
|
||||||||||||
Owners of the Company
|
549.002 | 1,280,461 | 365,521 | |||||||||
Non-controlling interests
|
610,536 | 1,066,318 | 235,350 |
The notes are an integral part of these financial statements.
|
Cosan Limited
|
|||||||||||||
Statement of changes in equity
|
|||||||||||||
For the year ended March 31, 2013, 2012 and 2011
|
|||||||||||||
(In thousands of Brazilian Reais – R$, except earnings per share)
|
|||||||||||||
Capital reserve
|
Equity
|
|||||||||||||||||||||||||||
Additional
|
Other
|
attributable
|
Non-
|
|||||||||||||||||||||||||
Share
|
paid in
|
comprehensive
|
Retained
|
to owners of
|
controlling
|
Total
|
||||||||||||||||||||||
capital
|
capital
|
income
|
earnings
|
the Company
|
interests
|
equity
|
||||||||||||||||||||||
At April 1, 2010
|
5,328 | 3,824,681 | (170,235 | ) | 535,724 | 4,195,498 | 2,296,428 | 6,491,926 | ||||||||||||||||||||
Profit for the year
|
- | - | - | 470,906 | 470,906 | 296,750 | 767,656 | |||||||||||||||||||||
Other comprehensive income
|
||||||||||||||||||||||||||||
Foreign currency translation differences
|
- | - | (4,180 | ) | - | (4,180 | ) | 131 | (4,049 | ) | ||||||||||||||||||
Gain (loss) on cash flow hedge
|
- | - | (89,117 | ) | - | (89,117 | ) | (54,181 | ) | (143,298 | ) | |||||||||||||||||
Defined benefit plan actuarial losses
|
- | - | (12,087 | ) | - | (12,087 | ) | (7,349 | ) | (19,436 | ) | |||||||||||||||||
Total comprehensive income for the year
|
- | - | (105,384 | ) | 470,906 | 365,522 | 235,351 | 600,873 | ||||||||||||||||||||
Contributions by and distributions to owners of the Company
|
||||||||||||||||||||||||||||
Share options exercised
|
- | (1,062 | ) | - | - | (1,062 | ) | 6,409 | 5,347 | |||||||||||||||||||
Share based compensation
|
- | 1,842 | - | - | 1,842 | 1,119 | 2,961 | |||||||||||||||||||||
Acquisition of treasury shares
|
- | (9,465 | ) | - | - | (9,465 | ) | (5,754 | ) | (15,219 | ) | |||||||||||||||||
Dividends
|
- | - | - | (119,294 | ) | (119,294 | ) | (100,831 | ) | (220,125 | ) | |||||||||||||||||
Total contributions by and
|
||||||||||||||||||||||||||||
distributions to owners of the Company
|
- | (8,685 | ) | - | (119,294 | ) | (127,979 | ) | (99,057 | ) | (227,036 | ) | ||||||||||||||||
Owners of the Company transactions
|
||||||||||||||||||||||||||||
Business combination - Logispot
|
||||||||||||||||||||||||||||
non-controlling interest
|
- | - | - | - | - | 64,277 | 64,277 | |||||||||||||||||||||
Issuance of common stock by Rumo
|
||||||||||||||||||||||||||||
to non-controlling interest
|
- | 128,363 | - | - | 128,363 | 271,637 | 400,000 | |||||||||||||||||||||
Other
|
- | (522 | ) | - | - | (522 | ) | (821 | ) | (1,343 | ) | |||||||||||||||||
Total transactions with
|
||||||||||||||||||||||||||||
owners of the Company
|
- | 127,841 | - | - | 127,841 | 335,093 | 462,934 | |||||||||||||||||||||
At March 31, 2011
|
5,328 | 3,943,837 | (275,619 | ) | 887,336 | 4,560,882 | 2,767,815 | 7,328,697 | ||||||||||||||||||||
Profit for the year
|
- | - | - | 1,181,342 | 1,181,342 | 1,010,990 | 2,192,332 | |||||||||||||||||||||
Other comprehensive income
|
||||||||||||||||||||||||||||
Foreign currency translation differences
|
- | - | 15,790 | - | 15,790 | 4,934 | 20,724 | |||||||||||||||||||||
Gain (loss) on cash flow hedge
|
- | - | 33,126 | - | 33,126 | 20,014 | 53,140 | |||||||||||||||||||||
Hedge accounting – reversal of
|
||||||||||||||||||||||||||||
OCI upon deconsolidation of
|
||||||||||||||||||||||||||||
subsidiaries and formation of the JVs
|
- | - | 64,961 | - | 64,961 | 39,311 | 104,272 | |||||||||||||||||||||
Defined benefit plan actuarial losses
|
- | - | (14,758 | ) | - | (14,758 | ) | (8,931 | ) | (23,689 | ) | |||||||||||||||||
Total comprehensive income for the year
|
- | - | 99,119 | 1,181,342 | 1,280,461 | 1,066,318 | 2,346,779 | |||||||||||||||||||||
Contributions by and distributions to owners of the Company
|
||||||||||||||||||||||||||||
Dividends - non-controlling interests
|
- | (30,065 | ) | - | - | (30,065 | ) | (18,193 | ) | (48,258 | ) | |||||||||||||||||
Share based compensation
|
- | 6,728 | - | - | 6,728 | 4,072 | 10,800 | |||||||||||||||||||||
Acquisition of treasury shares
|
- | (109,392 | ) | - | - | (109,392 | ) | - | (109,392 | ) | ||||||||||||||||||
Dividends
|
- | - | - | (140,998 | ) | (140,998 | ) | - | (140,998 | ) | ||||||||||||||||||
Total contributions by and distributions
|
||||||||||||||||||||||||||||
to owners of the Company
|
- | (132,729 | ) | - | (140,998 | ) | (273,727 | ) | (14,121 | ) | (287,848 | ) | ||||||||||||||||
Owners of the Company transactions
|
||||||||||||||||||||||||||||
Acquisition of a new business by
|
||||||||||||||||||||||||||||
Raízen Combustíveis
|
- | - | - | - | - | 9,036 | 9,036 | |||||||||||||||||||||
Corporate reorganization - Rumo Group
|
- | - | - | (1,993 | ) | (1,993 | ) | 77,864 | 75,871 | |||||||||||||||||||
Other
|
- | 700 | - | 11,000 | 11,700 | (2,612 | ) | 9,088 | ||||||||||||||||||||
Total transactions with
|
||||||||||||||||||||||||||||
owners of the Company
|
- | 700 | - | 9,007 | 9,707 | 84,288 | 93,995 | |||||||||||||||||||||
At March 31, 2012
|
5,328 | 3,811,808 | (176,500 | ) | 1,936,687 | 5,577,323 | 3,904,300 | 9,481,623 |
The notes are an integral part of these financial statements.
|
Cosan Limited
|
|||||||||||||||
Statement of changes in equity
|
|||||||||||||||
For the year ended March 31, 2013, 2012 and 2011
|
|||||||||||||||
(In thousands of Brazilian Reais – R$, except earnings per share)
|
Capital reserve
|
Equity
|
|||||||||||||||||||||||||||
Additional
|
Other
|
attributable
|
Non-
|
|||||||||||||||||||||||||
Share
|
paid in
|
comprehensive
|
Retained
|
to owners of
|
controlling
|
Total
|
||||||||||||||||||||||
capital
|
capital
|
income
|
earnings
|
the Company
|
interests
|
equity
|
||||||||||||||||||||||
At March 31, 2012
|
5,328 | 3,811,808 | (176,500 | ) | 1,936,687 | 5,577,323 | 3,904,300 | 9,481,623 | ||||||||||||||||||||
Profit for the year
|
- | - | - | 431,429 | 431,429 | 526,270 | 957,699 | |||||||||||||||||||||
Other comprehensive income
|
||||||||||||||||||||||||||||
Foreign currency translation differences
|
- | - | (3,381 | ) | - | (3,381 | ) | 5,964 | 2,583 | |||||||||||||||||||
Gain (loss) on cash flow hedge
|
- | - | 22,239 | - | 22,239 | 13,456 | 35,695 | |||||||||||||||||||||
Revaluation of investment property reclassified
|
- | - | 118,832 | - | 118,832 | 71,903 | 190,735 | |||||||||||||||||||||
from property, plant and equipment
|
||||||||||||||||||||||||||||
Defined benefit plan actuarial losses
|
- | - | (21,486 | ) | - | (21,486 | ) | (13,001 | ) | (34,487 | ) | |||||||||||||||||
Changes in value of available for sale
|
||||||||||||||||||||||||||||
financial assets from securities
|
- | - | 1,388 | - | 1,388 | 5,744 | 7,132 | |||||||||||||||||||||
Total comprehensive income for the year
|
- | - | 117,592 | 431,429 | 549,021 | 610,335 | 1,159,356 | |||||||||||||||||||||
Contributions by and distributions to owners of the Company
|
||||||||||||||||||||||||||||
Share options exercised
|
- | 10,444 | - | - | 10,444 | 6,320 | 16,764 | |||||||||||||||||||||
Dividends - non-controlling interests
|
- | (1,295 | ) | - | - | (1,295 | ) | 1,144 | (151 | ) | ||||||||||||||||||
Share based compensation
|
- | 8,284 | - | - | 8,284 | 5,012 | 13,296 | |||||||||||||||||||||
Dividends
|
- | - | - | (153,657 | ) | (153,657 | ) | (323,515 | ) | (477,172 | ) | |||||||||||||||||
Total contributions by and distributions to
|
||||||||||||||||||||||||||||
owners of the Company
|
- | 17,433 | - | (153,657 | ) | (136,224 | ) | (311,040 | ) | (447,264 | ) | |||||||||||||||||
Owners of the Company transactions
|
||||||||||||||||||||||||||||
Corporate reorganization - Raízen Group
|
- | 31,693 | - | - | 31,693 | 19,173 | 50,866 | |||||||||||||||||||||
Acquisition of treasury shares
|
- | (17,250 | ) | - | - | (17,250 | ) | - | (17,250 | ) | ||||||||||||||||||
Acquisition of non-conrolling interest
|
- | (2,859 | ) | - | - | (2,859 | ) | (79,641 | ) | (82,500 | ) | |||||||||||||||||
Acquisition of a new business by Raízen Combustíveis
|
- | - | - | - | - | 16,430 | 16,430 | |||||||||||||||||||||
Business combination - COMGÁS
|
- | 15,754 | - | - | 15,754 | 1,863,331 | 1,879,085 | |||||||||||||||||||||
Business combination - Radar
|
- | 270 | - | - | 270 | 1,285,769 | 1,286,039 | |||||||||||||||||||||
Business combination - Logispot non-controlling interest
|
- | - | - | - | - | (32,872 | ) | (32,872 | ) | |||||||||||||||||||
Capital increase –Sabbá
|
- | - | - | - | - | 2,462 | 2,462 | |||||||||||||||||||||
Total transactions with owners of the Company
|
- | 27,608 | - | - | 27,608 | 3,074,652 | 3,102,260 | |||||||||||||||||||||
At March 31, 2013
|
5,328 | 3,856,849 | (58,908 | ) | 2,214,459 | 6,017,728 | 7,278,247 | 13,295,975 |
The notes are an integral part of these financial statements.
|
|||||||||||||||
Cosan Limited
|
||||||||
Consolidated statement of cash flows
|
||||||||
For the year ended March 31, 2013, 2012 and 2011
|
||||||||
(In thousands of Brazilian Reais – R$)
|
||||||||
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Cash flows from operating activities
|
||||||||||||
Profit before tax
|
959,992 | 3,244,456 | 1,182,163 | |||||||||
Adjustments for:
|
||||||||||||
Depreciation and amortization (Note 5)
|
1,544,087 | 1,141,064 | 1,359,000 | |||||||||
Biological asset (Note 16)
|
112,511 | (60,093 | ) | (381,894 | ) | |||||||
Equity pick-up (Note 14)
|
(58,860 | ) | (33,268 | ) | (25,187 | ) | ||||||
Gains on disposals assets
|
(86,436 | ) | (93,892 | ) | (35,295 | ) | ||||||
Equity-settled share-based payment transactions
|
13,295 | 10,800 | 2,961 | |||||||||
Change in fair value of investment property (Note 15)
|
(138,776 | ) | - | - | ||||||||
Provision for judicial demands
|
51,085 | 80,835 | 23,828 | |||||||||
Indexation charges, interest and exchange gains/losses, net
|
658,910 | 644,163 | 238,482 | |||||||||
Effect of the formation of Joint Ventures
|
- | (2,850,868 | ) | - | ||||||||
Other
|
43,867 | (5,786 | ) | 4,585 | ||||||||
3,099,675 | 2,077,411 | 2,368,643 | ||||||||||
Changes in:
|
||||||||||||
Trade receivables
|
(162,364 | ) | (369,820 | ) | 164,693 | |||||||
Restricted cash
|
1,660 | 79,452 | (142,972 | ) | ||||||||
Cash provided from discontinued operations (Note 31)
|
116,387 | 21,233 | - | |||||||||
Inventories
|
(81,309 | ) | (184,225 | ) | 84,951 | |||||||
Recoverable taxes
|
(20,738 | ) | (6,930 | ) | (50,068 | ) | ||||||
Related parties
|
(125,484 | ) | (738,014 | ) | (5,536 | ) | ||||||
Advances to suppliers
|
36,885 | (103,294 | ) | 16,779 | ||||||||
Trade payables
|
85,518 | 224,033 | (32,361 | ) | ||||||||
Employee benefits
|
(11,757 | ) | 106,675 | 36,224 | ||||||||
Provision for judicial demands
|
(9,212 | ) | 63,125 | 3,031 | ||||||||
Derivative financial instruments
|
(5,424 | ) | (112,281 | ) | 13,347 | |||||||
Income tax and other tax
|
(530,092 | ) | 742,474 | (9,798 | ) | |||||||
Other
|
(50,679 | ) | 151,800 | (119,692 | ) | |||||||
(756,609 | ) | (125,772 | ) | (41,402 | ) | |||||||
Net cash from operating activities
|
2,343,066 | 1,951,639 | 2,327,241 | |||||||||
Cash flows from investing activities
|
||||||||||||
Acquisition net of cash acquired
|
(3,155,391 | ) | (72,930 | ) | (157,345 | ) | ||||||
Cash contributed - formation of Raízen
|
- | (173,116 | ) | - | ||||||||
Dividends received
|
- | 121,433 | - | |||||||||
Acquisition of property, plant and equipment and
|
||||||||||||
intangible assets (Notes 17 and 18)
|
(1,703,619 | ) | (1,624,012 | ) | (2,291,647 | ) | ||||||
Sugar-cane planting and growing costs (Note 16)
|
(474,392 | ) | (551,974 | ) | (745,572 | ) | ||||||
Proceeds from sale of discontinued operation
|
196,546 | - | - | |||||||||
Proceeds from sale of property, plant and equipment,
|
||||||||||||
intangible and investments, net of cash contributed
|
333,727 | 182,116 | 48,832 | |||||||||
Net cash used in discontinued operation
|
(411 | ) | (2,859 | ) | - | |||||||
Net cash used in investing activities
|
(4,803,540 | ) | (2,121,342 | ) | (3,145,732 | ) |
Cosan Limited
|
||||||||
Consolidated statement of cash flows
|
||||||||
For the year ended March 31, 2013, 2012 and 2011
|
||||||||
(In thousands of Brazilian Reais – R$)
|
||||||||
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Cash flows from financing activities
|
||||||||||||
Loans and borrowings raised
|
6,868,759 | 2,346,396 | 2,719,522 | |||||||||
Payment of principal and interest of loans and borrowings
|
(3,769,910 | ) | (1,889,362 | ) | (1,971,579 | ) | ||||||
Acquisition of non-controlling interest
|
(82,500 | ) | - | - | ||||||||
Redemption of shares in subsidiary
|
- | (99,784 | ) | - | ||||||||
Treasury shares
|
(17,250 | ) | (48,258 | ) | (15,219 | ) | ||||||
Dividends paid
|
(379,759 | ) | (333,659 | ) | (193,095 | ) | ||||||
Proceeds from exercise of share options
|
16,764 | - | - | |||||||||
Related parties
|
- | - | 37,072 | |||||||||
Capital increase
|
- | - | 3,996 | |||||||||
Capital subscribed in jointly controlled entities
|
659,366 | 560,946 | 400,000 | |||||||||
Net cash from financing activities
|
3,295,470 | 536,279 | 980,697 | |||||||||
Net increase in cash and cash equivalents
|
834,996 | 366,576 | 162,206 | |||||||||
Cash and cash equivalents at the beginning of the fiscal year
|
1,654,146 | 1,271,780 | 1,110,766 | |||||||||
Effect of exchange rate fluctuations on cash held
|
4,037 | 15,790 | (1,192 | ) | ||||||||
Cash and cash equivalents at the ended of the fiscal year
|
2,493,179 | 1,654,146 | 1,271,780 | |||||||||
Supplemental cash flow information
|
||||||||||||
Interest paid
|
260,167 | 305,527 | 450,051 | |||||||||
Income taxes paid
|
341,941 | 179,655 | 38,844 |
The notes are an integral part of these financial statements.
|
1.
|
Operations
|
2.
|
Basis of preparation
|
|
2.1.
|
Statement of compliance
|
|
2.2.
|
Basis of measurement
|
|
·
|
Derivative financial instruments are measured at fair value;
|
|
·
|
Non-derivative financial instruments at fair value through profit or loss are measured at fair value;
|
|
·
|
Available-for-sale financial assets are measured at fair value;
|
|
·
|
Biological assets are measured at fair value less costs to sell;
|
|
·
|
Investment property is measured at fair value; and
|
|
·
|
The net defined benefit liabilities is recognized as plan assets, plus unrecognized past service cost, less the present value of the defined benefit obligation and is limited as explained in Note 33.
|
|
2.3.
|
Functional and presentation currency
|
|
2.4.
|
Use of estimates and judgements
|
|
·
|
Note 13 – Business combination
|
|
·
|
Note 16 – Biological assets
|
|
·
|
Notes 17 and 18 – Property, plant and equipment and intangible assets
|
|
·
|
Note 21 – Deferred income taxes and social contribution
|
|
·
|
Other non-current asset
|
|
·
|
Note 32 – Fair value of derivatives and other financial instruments
|
|
·
|
Note 33 – Pension and other post-employment benefits plans
|
|
·
|
Note 34 – Share based payments
|
|
·
|
Note 22 – Provisions for judicial demands
|
3.
|
Significant accounting policies
|
|
3.1.
|
Basis of consolidation
|
Percentage
|
|||
2013
|
2012
|
||
Direct interest subsidiary
|
|||
Cosan S.A. Indústria e Comércio
|
62.30
|
62.30
|
|
Interest of Cosan S.A. Indústria e Comércio in its
|
|||
subsidiaries and jointly controlled entities
|
|||
Subsidiaries
|
|||
Administração de Participações Aguassanta Ltda.
|
65.00
|
91.50
|
|
Bioinvestments Negócios e Participações S.A.
|
65.00
|
91.50
|
|
Vale da Ponte Alta S.A.
|
65.00
|
91.50
|
|
Águas da Ponte Alta S.A.
|
65.00
|
91.50
|
|
Proud Participações S.A.
|
65.00
|
100.00
|
|
Radar II Propriedades Agrícolas S.A. (6)
|
65.00
|
-
|
|
Radar Propriedades Agrícolas S.A. (6)
|
29.50
|
-
|
|
Nova Agrícola Ponte Alta S.A. (6)
|
29.50
|
-
|
|
Terras da Ponte Alta S.A. (6)
|
29.50
|
-
|
|
Nova Santa Barbara Agrícola S.A. (6)
|
29.50
|
-
|
|
Nova Amaralina S.A. Propriedades Agrícolas (6)
|
29.50
|
-
|
|
Cosan US, Inc.
|
100.00
|
-
|
|
Cosan Biomassa S.A.
|
100.00
|
-
|
|
Cosan Lubes Investments Limited
|
100.00
|
-
|
|
Comma Oil Chemicals
|
100.00
|
-
|
|
Companhia de Gás de São Paulo - COMGÁS
|
60.05
|
-
|
|
Cosan Overseas Limited
|
100.00
|
100.00
|
|
Pasadena Empreendimentos e Participações S.A.
|
100.00
|
100.00
|
|
Cosan Cayman Finance Limited
|
100.00
|
100.00
|
|
Cosan Cayman II Limited
|
100.00
|
100.00
|
|
Cosan Lubrificantes e Especialidades S.A.
|
100.00
|
100.00
|
|
CCL Cayman Finance Limited
|
100.00
|
100.00
|
|
Cosan Luxembourg S.A.
|
100.00
|
-
|
|
Copsapar Participações S.A. (7)
|
-
|
90.00
|
|
Novo Rumo Logística S.A.
|
100.00
|
92.90
|
|
Cosan Infraestrutura S.A.
|
100.00
|
-
|
|
Handson Participações S.A. (8)
|
-
|
100.00
|
|
Docelar Alimentos e Bebidas S.A. (8)
|
-
|
99.90
|
|
Rumo Logística Operadora Multimodal S.A. (former
|
|||
Cosan Operadora Portuária S.A.)
|
75.00
|
69.67
|
|
Logispot Armazéns Gerais S.A. (5)
|
51.00
|
51.00
|
|
Stallion S.A.
|
100.00
|
100.00
|
Percentage
|
|||
2013
|
2012
|
||
Jointly-Controlled entities
|
|||
Raízen S.A. (1)
|
50.00
|
50.00
|
|
Raízen Energia Participações S.A. (1) (2) (3)
|
-
|
50.00
|
|
Raízen Energia S.A. (1) (2)
|
50.00
|
-
|
|
Raízen Combustíveis S.A. (1) (2)
|
50.00
|
50.00
|
|
IPUTI Empreendimentos e Participações S.A. (1) (4)
|
-
|
50.00
|
|
(1)
|
Company jointly-controlled with Shell;
|
|
(2)
|
Represents voting and economic interest. Cosan S.A. holds 50% plus one of the common stock of Raízen Energia, and 50% minus one common stock of Raízen Combustíveis;
|
|
(3)
|
Incorporated in Raizen Energia SA on November 30, 2012;
|
|
(4)
|
Disposed of through sale on June 1, 2012;
|
|
(5)
|
The Company has control over this subsidiary through an interest of 51% held by Rumo;
|
|
(6)
|
See details related to the gain of control in Note 13;
|
|
(7)
|
Incorporated into Novo Rumo on March 26, 2013;
|
|
(8)
|
See details in Note 31.
|
|
(a)
|
Business combinations
|
|
·
|
The fair value of the consideration transferred; plus
|
|
·
|
The recognized amount of any non-controlling interests in the acquiree; plus
|
|
·
|
If the business combination is achieved in stages, the fair value of the pre-existing equity interest in the acquiree; less
|
|
·
|
The net recognized amount (generally fair value) of the identifiable assets acquired and liabilities assumed.
|
|
(b)
|
Non-controlling interests
|
|
·
|
At fair value; or
|
|
·
|
At their proportionate share of the acquiree’s identifiable net assets, which are generally at fair value.
|
|
(c)
|
Subsidiaries
|
|
(d)
|
Investments in associates (equity-accounted investees)
|
|
(e)
|
Investments in jointly controlled entities (proportionally consolidated)
|
|
(f)
|
Transactions eliminated on consolidation
|
|
3.2.
|
Foreign currency
|
|
(a)
|
Foreign currency transactions
|
|
·
|
Available-for-sale equity investments (except on impairment in which case foreign currency differences that have been recognized in other comprehensive income are reclassified to profit or loss);
|
|
·
|
A financial liability designated as a hedge of the net investment in a foreign operation to the extent that the hedge is effective; or
|
|
·
|
Qualifying cash flow hedges to the extent the hedge is effective.
|
|
(i)
|
Assets and liabilities using the exchange rate of the closing period;
|
|
(ii)
|
Statement of income, comprehensive income and statement of cash flows using the monthly average exchange rate; and
|
|
(iii)
|
Shareholders' equity using the historical exchange rate.
|
|
(b)
|
Foreign operations
|
|
(c)
|
Translation of subsidiaries and associates’ financial statements
|
|
3.3.
|
Financial instruments
|
|
(a)
|
Non-derivative financial assets
|
|
(i)
|
Financial assets at fair value through profit or loss
|
|
(ii)
|
Held-to-maturity financial assets
|
|
(iii)
|
Loans and receivables
|
|
(iv)
|
Available-for-sale financial assets
|
|
(b)
|
Cash and cash equivalents
|
|
(c)
|
Non-derivative financial liabilities
|
|
(d)
|
Derivative financial instruments, including hedge accounting
|
|
·
|
The economic characteristics and risks of the host contract and the embedded derivative are not closely related;
|
|
·
|
A separate instrument with the same terms as the embedded derivative would meet the definition of a derivative; and
|
|
·
|
The combined instrument is not measured at fair value through profit or loss.
|
|
(i)
|
Cash flow hedges
|
|
(ii)
|
Separable embedded derivatives
|
|
(iii)
|
Other non-trading derivatives
|
|
3.4.
|
Inventories
|
|
3.5.
|
Non-current assets held for sale and discontinued operations
|
|
3.6.
|
Biological assets
|
|
3.7.
|
Investment property
|
|
3.8.
|
Property, plant and equipment
|
|
(a)
|
Recognition and measurement
|
|
·
|
The cost of materials and direct labor;
|
|
·
|
Any other costs directly attributable to bringing the assets to a working condition for their intended use;
|
|
·
|
When the Company has an obligation to remove the asset or restore the site, an estimate of the costs of dismantling and removing the items and restoring the site on which they are located; and
|
|
·
|
Capitalised borrowing costs.
|
|
(b)
|
Reclassification to investment property
|
|
(c)
|
Subsequent costs
|
|
(d)
|
Depreciation
|
Buildings and Improvements
|
4%
|
Machinery, Equipment and Facilities
|
3% to 10%
|
Airplanes, vessels and vehicles
|
10% to 20%
|
Rail Cars
|
2.9%
|
Locomotives
|
3.3%
|
Furniture and Fixtures
|
10%
|
Computer Equipment
|
20%
|
|
3.9.
|
Intangible assets and goodwill
|
|
(a)
|
Goodwill
|
|
(i)
|
Subsequent measurement
|
|
(b)
|
Research and development
|
|
(c)
|
Other intangible assets
|
|
(d)
|
Subsequent expenditure
|
|
(e)
|
Amortization
|
|
(f)
|
Contracts with customers
|
|
(g)
|
Concession agreement
|
3.10.
|
Impairment
|
|
(a)
|
Non-derivative financial assets
|
|
(i)
|
Financial assets measured at amortised cost
|
|
(ii)
|
Available-for-sale financial assets
|
|
(b)
|
Non-financial assets
|
3.11.
|
Provisions
|
3.12.
|
Employee benefits
|
|
(a)
|
Short-term employee benefits
|
|
(b)
|
Share-based payment transactions
|
|
(c)
|
Defined contribution plans
|
|
(d)
|
Defined benefit plans
|
|
(e)
|
Other long-term employee benefits
|
3.13.
|
Revenue
|
|
(a)
|
Sales of goods
|
|
(b)
|
Sales of services
|
|
(i)
|
Billed revenue
|
|
(ii)
|
Unbilled revenue
|
|
(iii)
|
Construction revenue
|
3.14.
|
Leases
|
|
(a)
|
Leased assets
|
|
(b)
|
Leased payments
|
|
(c)
|
Determining whether an arrangement contains a lease
|
|
·
|
The fulfilment of the arrangement is dependent on the use of a specific asset or assets; and
|
|
·
|
The arrangement contains a right to use the asset(s).
|
3.15.
|
Finance income and finance expense
|
3.16.
|
Tax
|
|
(a)
|
Current tax
|
|
(b)
|
Deferred tax
|
|
·
|
Temporary differences on the initial recognition of assets or liabilities in a transaction that is not a business combination and that affects neither accounting nor taxable profit or loss;
|
|
·
|
Temporary differences related to investments in subsidiaries, associates and jointly controlled entities to the extent that the Company is able to control the timing of the reversal of the temporary differences and it is probable that they will not reverse in the foreseeable future; and
|
|
·
|
Taxable temporary differences arising on the initial recognition of goodwill.
|
|
(c)
|
Indirect tax
|
|
(d)
|
Tax exposures
|
3.17.
|
Reclassification of discontinued operations
|
Statement of income, for the year ended March 31, 2012
|
||||||||||||
As issued
|
Reclassification
|
Reclassified
|
||||||||||
Gross profit
|
2,631,872 | (129,065 | ) | 2,502,807 | ||||||||
Operating expenses
|
1,115,954 | 72,887 | 1,188,841 | |||||||||
Financial results, net (Note 29)
|
(478,549 | ) | (1,911 | ) | (480,460 | ) | ||||||
Income taxes (Note 21)
|
(1,110,213 | ) | (6,159 | ) | (1,116,372 | ) | ||||||
Profit from continuing operations
|
2,192,332 | (64,248 | ) | 2,128,084 | ||||||||
Profit from discontinued operation, net of tax
|
- | 64,248 | 64,248 | |||||||||
Profit for the year
|
2,192,332 | - | 2,192,332 |
Statement of cash flows, for the year ended March 31, 2012 | ||||||||||||||||
Discontinued
|
||||||||||||||||
As issued
|
operations
|
Reclassification
|
Reclassified
|
|||||||||||||
Cash flows from operating activities
|
||||||||||||||||
Profit for the year to Profit before tax
|
2,192,332 | (69,625 | ) | 1,121,749 | 3,244,456 | |||||||||||
Adjustments for profit reconciliation
|
(280,967 | ) | 20,923 | (907,001 | ) | (1,167,045 | ) | |||||||||
Changes in assets and liabilities
|
40,274 | 48,702 | (214,748 | ) | (125,772 | ) | ||||||||||
Net cash from operating activities
|
1,951,639 | - | - | 1,951,639 | ||||||||||||
Cash flows from investing activities
|
||||||||||||||||
Acquisition of property, plant and equipment and
|
||||||||||||||||
intangible assets (Notes 17 and 18)
|
(1,584,543 | ) | 2,859 | - | (1,581,684 | ) | ||||||||||
Net cash used in discontinued operation
|
- | (2,859 | ) | - | (2,859 | ) | ||||||||||
Other investing activities
|
(636,583 | ) | - | - | (636,583 | ) | ||||||||||
Net cash used in investing activities
|
(2,221,126 | ) | - | - | (2,221,126 | ) | ||||||||||
Net cash from financing activities
|
636,063 | - | - | 636,063 | ||||||||||||
Effect of exchange rate fluctuations on cash held
|
15,790 | - | - | 15,790 | ||||||||||||
Net increase in cash and cash equivalents
|
382,366 | - | - | 382,366 |
4.
|
New standards and interpretations not yet adopted
|
|
·
|
IFRS 9 - Financial Instruments: Classification and Measurement
|
|
·
|
IFRS 10 - Consolidated Financial Statements
|
|
·
|
IFRS 11 - Joint Arrangements
|
|
·
|
IFRS 12 - Disclosure of Involvement with Other Entities
|
|
·
|
IFRS 13 - Fair Value Measurement
|
|
·
|
IAS 19 - Employee Benefits
|
|
·
|
IAS 28 - Investments in Associates and Joint Ventures (revised in 2011)
|
5.
|
Operating segments
|
|
5.1.
|
Segment information
|
|
(a)
|
Continuing operations
|
|
·
|
Raízen Energia: production and marketing of a variety of products derived from sugar cane, including raw sugar (VHP), anhydrous and hydrated ethanol, and activities related to energy cogeneration from
|
|
sugarcane bagasse. In addition, this segment holds interests in companies engaged in research and development on new technology;
|
|
·
|
Raízen Combustíveis: distribution and marketing of fuels, mainly through a franchised network of service stations under the brand "Shell" and "Esso" throughout Brazil;
|
|
·
|
Radar: buying, selling and leasing of agricultural land for sugarcane plants and grains;
|
|
·
|
Rumo: logistics services for transport, storage and port lifting, mainly for sugar products;
|
|
·
|
COMGÁS: distribution of piped natural gas in part of the territory of the State of São Paulo (approximately 180 municipalities, including the region called Greater São Paulo) to customers in the industrial, residential, commercial, automotive, thermogeneration and cogeneration sectors;
|
|
·
|
Cosan’s other business: sale and distribution of lubricants and other investments, in addition to the corporate activities of the Company;
|
|
(b)
|
Discontinued operations
|
|
·
|
Cosan Alimentos: sale of food, mainly, of sugar in the retail under the brands "União" and "Da Barra", which was sold on October 24, 2012 (Note 1).
|
For the year ended March 31, 2013
|
||||||||||||||||||||||||||||||||||||||||
Cosan's
|
Elimination
|
Other
|
Total
|
|||||||||||||||||||||||||||||||||||||
Raízen
|
Raízen
|
other
|
50 | % |
adjustments
|
continuing
|
Discontinued
|
|||||||||||||||||||||||||||||||||
Energia
|
Combustíveis
|
Radar(ii)
|
Rumo
|
COMGÁS(iii)
|
business
|
Raízen
|
and eliminations
|
operations
|
operation
|
|||||||||||||||||||||||||||||||
Statement of financial position
|
||||||||||||||||||||||||||||||||||||||||
Current other assets
|
1,943,842 | 3,495,026 | 34,025 | 128,599 | 1,018,046 | 920,486 | (2,719,434 | ) | (865,831 | ) | 3,954,759 | - | ||||||||||||||||||||||||||||
Investment property
|
- | - | 2,473,438 | - | - | - | - | - | 2,473,438 | - | ||||||||||||||||||||||||||||||
Property, plant and equipment
|
9,896,478 | 2,634,126 | 11,852 | 952,915 | - | 213,530 | (6,265,302 | ) | (8,496 | ) | 7,435,103 | - | ||||||||||||||||||||||||||||
Intangible assets
|
3,050,310 | 4,043,570 | 99 | 677,860 | 8,071,839 | 865,099 | (3,546,939 | ) | - | 13,161,838 | - | |||||||||||||||||||||||||||||
Non-current other assets
|
3,606,674 | 1,269,342 | 9,252 | 28,518 | 184,269 | 8,307,728 | (2,438,008 | ) | (6,795,638 | ) | 4,172,137 | - | ||||||||||||||||||||||||||||
Loans and borrowings, net of cash
|
||||||||||||||||||||||||||||||||||||||||
and cash equivalents
|
(4,129,476 | ) | (593,756 | ) | 69,028 | (192,901 | ) | (2,383,095 | ) | (4,351,108 | ) | 2,361,616 | - | (9,219,692 | ) | - | ||||||||||||||||||||||||
Current other liabilities
|
(2,005,582 | ) | (1,528,954 | ) | (40,630 | ) | (195,406 | ) | (817,637 | ) | (524,314 | ) | 1,767,268 | 843,452 | (2,501,803 | ) | - | |||||||||||||||||||||||
Non-current other liabilities
|
(1,699,138 | ) | (2,648,162 | ) | (74,813 | ) | (125,634 | ) | (845,093 | ) | (3,771,709 | ) | 2,173,650 | 811,094 | (6,179,805 | ) | - | |||||||||||||||||||||||
Total assets (net of liabilities)
|
||||||||||||||||||||||||||||||||||||||||
allocated by segment
|
10,663,108 | 6,671,192 | 2,482,251 | 1,273,951 | 5,228,329 | 1,659,712 | (8,667,149 | ) | (6,015,419 | ) | 13,295,975 | - | ||||||||||||||||||||||||||||
Total assets
|
20,256,805 | 11,580,776 | 2,597,694 | 2,307,995 | 9,601,658 | 27,014,989 | (15,918,790 | ) | (23,644,817 | ) | 33,796,310 | - | ||||||||||||||||||||||||||||
Statement of income
|
||||||||||||||||||||||||||||||||||||||||
Net sales
|
8,468,238 | 43,532,232 | 51,853 | 712,776 | 2,398,989 | 1,422,590 | (26,000,235 | ) | (569,955 | ) | 30,016,488 | 410,677 | ||||||||||||||||||||||||||||
Domestic market
|
3,454,440 | 43,532,232 | 51,853 | 631,908 | 2,398,989 | 1,242,464 | (23,493,336 | ) | (569,955 | ) | 27,248,595 | 410,677 | ||||||||||||||||||||||||||||
External market
|
5,013,798 | - | - | 80,868 | - | 180,126 | (2,506,899 | ) | - | 2,767,893 | - | |||||||||||||||||||||||||||||
Gross profit
|
1,586,321 | 2,333,213 | 50,111 | 292,217 | 660,676 | 371,895 | (1,959,767 | ) | (2,444 | ) | 3,332,222 | 56,487 | ||||||||||||||||||||||||||||
Selling, general and administrative
|
||||||||||||||||||||||||||||||||||||||||
expenses
|
(1,129,084 | ) | (1,388,536 | ) | (14,898 | ) | (58,088 | ) | (387,440 | ) | (418,535 | ) | 1,258,809 | - | (2,137,772 | ) | (58,502 | ) | ||||||||||||||||||||||
Other income (expenses)
|
49,837 | 219,520 | 144,344 | (7,492 | ) | (2,221 | ) | 56,998 | (134,676 | ) | - | 326,310 | 172,586 | |||||||||||||||||||||||||||
Financial result, net
|
(334,399 | ) | (58,632 | ) | 3,058 | 189 | (63,701 | ) | (362,659 | ) | 196,516 | - | (619,628 | ) | 10,166 | |||||||||||||||||||||||||
Equity pick-up
|
(23,108 | ) | - | - | - | - | 911,366 | 11,554 | (840,952 | ) | 58,860 | - | ||||||||||||||||||||||||||||
Income tax and social contribution
|
56,188 | (314,838 | ) | (13,180 | ) | (76,423 | ) | (47,439 | ) | 125,155 | 129,326 | - | (141,211 | ) | (41,819 | ) | ||||||||||||||||||||||||
Profit for the year (iv)
|
205,755 | 790,727 | 169,435 | 150,403 | 159,875 | 684,220 | (498,238 | ) | (843,396 | ) | 818,781 | 138,918 | ||||||||||||||||||||||||||||
Other selected data
|
||||||||||||||||||||||||||||||||||||||||
Addition PP&E, intangible and
|
||||||||||||||||||||||||||||||||||||||||
biological assets (cash)
|
2,404,514 | 677,245 | 760 | 266,661 | 294,359 | 75,352 | (1,540,880 | ) | - | 2,178,011 | - | |||||||||||||||||||||||||||||
Depreciation and amortization
|
||||||||||||||||||||||||||||||||||||||||
(including biological assets non
|
||||||||||||||||||||||||||||||||||||||||
cash effect)
|
1,924,301 | 494,299 | 877 | 70,043 | 200,451 | 63,416 | (1,209,300 | ) | - | 1,544,087 | 1,185 | |||||||||||||||||||||||||||||
EBITDA
|
2,408,267 | 1,658,496 | 180,434 | 296,680 | 471,466 | 985,140 | (2,033,380 | ) | (843,396 | ) | 3,123,707 | 171,756 | ||||||||||||||||||||||||||||
Reconciliation of EBITDA
|
||||||||||||||||||||||||||||||||||||||||
Profit for the year (iv)
|
205,755 | 790,727 | 169,435 | 150,403 | 159,875 | 684,220 | (498,238 | ) | (843,396 | ) | 818,781 | 138,918 | ||||||||||||||||||||||||||||
Income tax and social contribution
|
(56,188 | ) | 314,838 | 13,180 | 76,423 | 47,439 | (126,155 | ) | (129,326 | ) | - | 141,211 | 41,819 | |||||||||||||||||||||||||||
Financial result, net
|
334,399 | 58,632 | (3,058 | ) | (189 | ) | 63,701 | 362,659 | (196,516 | ) | - | 619,628 | (10,166 | ) | ||||||||||||||||||||||||||
Depreciation and amortization
|
||||||||||||||||||||||||||||||||||||||||
(including biological assets non
|
||||||||||||||||||||||||||||||||||||||||
cash effect)
|
1,924,301 | 494,299 | 877 | 70,043 | 200,451 | 63,416 | (1,209,300 | ) | - | 1,544,087 | 1,185 | |||||||||||||||||||||||||||||
EBITDA
|
2,408,267 | 1,658,496 | 180,434 | 296,680 | 471,466 | 985,140 | (2,033,380 | ) | (843,396 | ) | 3,123,707 | 171,756 |
For the year ended March 31, 2012 (Restated)
|
||||||||||||||||||||||||||||||||
Cosan's
|
Elimination
|
Other
|
Total
|
|||||||||||||||||||||||||||||
Raízen
|
Raízen
|
other
|
50 | % |
adjustments
|
continued
|
Discontinued
|
|||||||||||||||||||||||||
Energia
|
Combustíveis
|
Rumo
|
business
|
Raízen
|
and eliminations
|
operation
|
operation
|
|||||||||||||||||||||||||
Statement of financial position
|
||||||||||||||||||||||||||||||||
Current other assets
|
3,078,569 | 3,303,591 | 99,432 | 672,324 | (3,191,080 | ) | (1,071,847 | ) | (1,071,847 | ) | 208,445 | |||||||||||||||||||||
Property, plant and equipment
|
9,658,979 | 2,779,641 | 879,469 | 730,707 | (6,219,310 | ) | (8,496 | ) | 7,820,990 | 45,973 | ||||||||||||||||||||||
Intangible assets
|
2,996,846 | 3,928,900 | 604,963 | 780,822 | (3,462,873 | ) | - | 4,848,658 | 83,597 | |||||||||||||||||||||||
Non-current other assets
|
3,044,193 | 1,511,731 | 31,964 | 13,262,610 | (2,277,962 | ) | (10,998,332 | ) | 4,574,204 | 41,117 | ||||||||||||||||||||||
Loans and borrowings, net of cash
|
||||||||||||||||||||||||||||||||
and cash equivalents
|
(4,404,761 | ) | (603,447 | ) | (217,575 | ) | (853,398 | ) | 2,504,104 | - | (3,575,077 | ) | 29,834 | |||||||||||||||||||
Current other liabilities
|
(2,083,272 | ) | (1,899,695 | ) | (65,863 | ) | (428,436 | ) | 1,991,484 | 1,043,421 | (1,442,361 | ) | (91,865 | ) | ||||||||||||||||||
Non-current other liabilities
|
(2,200,352 | ) | (2,663,502 | ) | (117,708 | ) | (4,044,119 | ) | 2,431,927 | 656,115 | (5,937,639 | ) | (15,242 | ) | ||||||||||||||||||
Total assets (net of liabilities)
|
||||||||||||||||||||||||||||||||
allocated by segment
|
10,090,202 | 6,357,219 | 1,214,682 | 10,120,511 | (8,223,711 | ) | (10,379,139 | ) | 9,179,764 | 301,859 | ||||||||||||||||||||||
Total assets
|
19,979,070 | 11,559,239 | 2,029,954 | 16,038,720 | (15,769,155 | ) | (12,078,675 | ) | 21,759,153 | 408,966 | ||||||||||||||||||||||
Statement of income
|
||||||||||||||||||||||||||||||||
Net sales
|
7,247,685 | 35,096,051 | 571,989 | 1,065,515 | (19,711,867 | ) | (878,923 | ) | 23,390,450 | 706,431 | ||||||||||||||||||||||
Domestic market
|
3,925,829 | 35,096,051 | 567,265 | 1,065,515 | (18,166,988 | ) | (878,923 | ) | 21,608,749 | 706,431 | ||||||||||||||||||||||
External market
|
3,321,856 | - | 4,724 | - | (1,544,879 | ) | - | 1,781,701 | - | |||||||||||||||||||||||
Gross profit
|
1,668,941 | 1,958,726 | 177,923 | 332,646 | (1,635,429 | ) | - | 2,502,807 | 129,073 | |||||||||||||||||||||||
Selling, general and administrative
|
||||||||||||||||||||||||||||||||
expenses
|
(965,440 | ) | (1,445,358 | ) | (41,541 | ) | (324,489 | ) | 1,090,503 | - | (1,686,325 | ) | (96,001 | ) | ||||||||||||||||||
Gain on the de-recognition of
|
||||||||||||||||||||||||||||||||
subsidiaries to form the Joint Ventures
|
- | - | - | 2,752,730 | - | - | 2,752,730 | - | ||||||||||||||||||||||||
Other income (expenses)
|
(18,207 | ) | 270,736 | 19,461 | (12,035 | ) | (129,023 | ) | (8,496 | ) | 122,436 | 23,114 | ||||||||||||||||||||
Financial result, net
|
(267,934 | ) | (82,203 | ) | 8,992 | (360,701 | ) | 221,386 | - | (480,460 | ) | 1,911 | ||||||||||||||||||||
Equity pick-up
|
(11,840 | ) | - | - | 731,376 | 5,920 | (692,188 | ) | 33,268 | - | ||||||||||||||||||||||
Income tax and social contribution
|
(27,250 | ) | (192,056 | ) | (55,035 | ) | (935,180 | ) | 93,149 | - | (1,116,372 | ) | 6,156 | |||||||||||||||||||
Profit for the year (iv)
|
378,269 | 525,916 | 109,801 | 2,322,681 | (353,500 | ) | (855,083 | ) | 2,128,084 | 64,248 | ||||||||||||||||||||||
Other selected data
|
||||||||||||||||||||||||||||||||
Addition PP&E, intangible and
|
||||||||||||||||||||||||||||||||
biological assets (cash)
|
2,577,859 | 491,734 | 268,985 | 99,473 | (1,291,124 | ) | (13,270 | ) | 2,133,657 | 2,860 | ||||||||||||||||||||||
Depreciation and amortization
|
||||||||||||||||||||||||||||||||
(including biological assets non
|
||||||||||||||||||||||||||||||||
cash effect)
|
1,549,994 | 365,603 | 57,323 | 48,329 | (880,184 | ) | - | 1,141,065 | 1,716 | |||||||||||||||||||||||
Other financial information
|
||||||||||||||||||||||||||||||||
Profit for the year (iv)
|
378,269 | 525,916 | 109,801 | 2,322,681 | (353,500 | ) | (855,083 | ) | 2,128,084 | 64,248 | ||||||||||||||||||||||
Income tax and social contribution
|
27,250 | 192,056 | 55,035 | 935,180 | (93,149 | ) | - | 1,116,372 | (6,156 | ) | ||||||||||||||||||||||
Financial result, net
|
267,934 | 82,203 | (8,992 | ) | 360,701 | (221,386 | ) | - | 480,460 | (1,911 | ) | |||||||||||||||||||||
Depreciation and amortization
|
||||||||||||||||||||||||||||||||
(including biological assets non
|
||||||||||||||||||||||||||||||||
cash effect)
|
1,549,994 | 365,603 | 57,323 | 48,329 | (880,184 | ) | - | 1,141,065 | 1,716 | |||||||||||||||||||||||
Total
|
2,223,447 | 1,149,707 | 213,166 | 3,528,557 | (1,548,213 | ) | (700,684 | ) | 4,865,980 | 57,902 |
For the year ended March 31, 2011
|
||||||||||||||||||||||||
Cosan's
|
Other
|
|||||||||||||||||||||||
Raízen
|
Raízen
|
other
|
adjustments
|
|||||||||||||||||||||
Energia (i)
|
Combustíveis (i)
|
Rumo
|
business
|
and eliminations
|
Consolidated
|
|||||||||||||||||||
Statement of income
|
||||||||||||||||||||||||
Net sales
|
6,389,178 | 10,966,245 | 448,003 | 829,032 | (568,978 | ) | 18,063,480 | |||||||||||||||||
Domestic market
|
3,678,207 | 10,966,245 | 448,003 | 829,032 | (568,978 | ) | 15,352,509 | |||||||||||||||||
External market
|
2,710,971 | - | - | - | - | 2,710,971 | ||||||||||||||||||
Gross profit
|
1,988,662 | 466,989 | 131,469 | 314,131 | 12,150 | 2,913,401 | ||||||||||||||||||
Selling, general and administrative
|
||||||||||||||||||||||||
expenses
|
(961,407 | ) | (372,438 | ) | (28,951 | ) | (207,018 | ) | (1,636 | ) | (1,571,450 | ) | ||||||||||||
Other income (expenses)
|
(65,415 | ) | 33,754 | 9,936 | (1,977 | ) | (10,126 | ) | (33,828 | ) | ||||||||||||||
Financial result, net
|
(101,755 | ) | (22,441 | ) | 13,047 | (39,998 | ) | - | (151,147 | ) | ||||||||||||||
Equity pick-up
|
279,235 | (191,741 | ) | (20,093 | ) | 196,740 | (238,952 | ) | 25,189 | |||||||||||||||
Income tax and social contribution
|
(305,977 | ) | (40,490 | ) | (42,865 | ) | (25,176 | ) | - | (414,508 | ) | |||||||||||||
Profit for the year (iv)
|
833,343 | (126,368 | ) | 62,543 | 236,702 | (238,564 | ) | 767,656 | ||||||||||||||||
Other selected data
|
||||||||||||||||||||||||
Addition PP&E, intangible and
|
||||||||||||||||||||||||
biological assets (cash)
|
2,817,195 | 83,266 | 126,189 | 10,569 | - | 3,037,219 | ||||||||||||||||||
Depreciation and amortization
|
||||||||||||||||||||||||
(including biological assets non
|
||||||||||||||||||||||||
cash effect)
|
1,266,142 | 35,798 | 20,157 | 36,903 | - | 1,359,000 | ||||||||||||||||||
Other financial information
|
||||||||||||||||||||||||
Profit for the year (iv)
|
833,343 | (126,368 | ) | 62,543 | 236,702 | (238,564 | ) | 767,656 | ||||||||||||||||
Income tax and social contribution
|
305,977 | 40,490 | 42,865 | 25,176 | - | 414,508 | ||||||||||||||||||
Financial result, net
|
101,755 | 22,441 | (13,047 | ) | 39,998 | - | 151,147 | |||||||||||||||||
Depreciation and amortization
|
||||||||||||||||||||||||
(including biological assets non
|
||||||||||||||||||||||||
cash effect)
|
1,266,142 | 35,798 | 20,157 | 36,903 | - | 1,359,000 | ||||||||||||||||||
Total
|
2,507,217 | (27,638 | ) | 112,518 | 338,779 | (238,564 | ) | 2,692,311 |
|
(i)
|
The segment information for Raízen Energia and Raízen Combustíveis represents 100% of the business, regardless of the fact that the Company lost full control of that business on June 1, 2011 with the formation of the JVs. The segment Raízen Energia represents basically the same information as was represented in prior periods by the "CAA" segment. The segment Raízen Combustíveis represents until May 31, 2011 the fuel business of the segment previously called CCL, except for the lubricants business, and since then also the business of fuel distribution of Shell Brazil Ltda. which was contributed to the Joint Venture. All of the non-current assets of the Company are located in the host country of the entity (Brazil).
|
|
(ii)
|
For the period of nine months due to consolidation.
|
(iii)
|
For the period of five months due to consolidation.
|
(iv)
|
Management considers EBITDA, or earnings before interest(financial results), income taxes, depreciation and amortization as its main measure of segment performance.
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Raízen Energia
|
||||||||||||
Sugar
|
4,353,994 | 3,912,824 | 3,853,404 | |||||||||
Ethanol
|
3,299,938 | 2,871,515 | 2,203,737 | |||||||||
Cogeneration
|
569,709 | 235,129 | 194,889 | |||||||||
Other
|
244,597 | 228,217 | 137,148 | |||||||||
8,468,238 | 7,247,685 | 6,389,178 | ||||||||||
Raízen Combustíveis
|
||||||||||||
Fuels
|
43,516,040 | 35,032,782 | 10,895,655 | |||||||||
Other
|
16,192 | 63,269 | 70,590 | |||||||||
43,532,232 | 35,096,051 | 10,966,245 | ||||||||||
Rumo
|
||||||||||||
Port lifting
|
150,028 | 141,026 | 118,139 | |||||||||
Logistics
|
549,420 | 413,364 | 305,780 | |||||||||
Other
|
13,328 | 17,598 | 24,084 | |||||||||
712,776 | 571,988 | 448,003 | ||||||||||
Radar (ii)
|
||||||||||||
Property sale
|
4,721 | - | - | |||||||||
Land lease
|
47,132 | - | - | |||||||||
51,853 | - | - | ||||||||||
COMGÁS (i)
|
||||||||||||
Industrial
|
1,535,941 | - | - | |||||||||
Residential
|
203,254 | - | - | |||||||||
Thermogeneration
|
148,652 | - | - | |||||||||
Cogeneration
|
112,705 | - | - | |||||||||
Automotive
|
77,486 | - | - | |||||||||
Commercial
|
84,517 | - | - | |||||||||
Construction revenue
|
230,038 | - | - | |||||||||
Other
|
6,397 | - | - | |||||||||
2,398,990 | - | - | ||||||||||
Cosan's other business
|
||||||||||||
Lubricants
|
1,255,473 | 1,018,801 | 829,032 | |||||||||
Other
|
167,117 | 46,714 | - | |||||||||
1,422,590 | 1,065,515 | 829,032 | ||||||||||
Adjustments / eliminations
|
(26,570,190 | ) | (20,590,788 | ) | (568,978 | ) | ||||||
Total
|
30,016,489 | 23,390,451 | 18,063,480 |
|
(i)
|
For the period of five months – acquired on November 5, 2012;
|
|
(ii)
|
For the period of nine months – acquired on June 1, 2012.
|
2013
|
2012
|
2011
|
||||||||||
Brazil
|
50.81 | 67.24 | 72.63 | |||||||||
Europe
|
31.83 | 24.18 | 24.93 | |||||||||
Middle East and Asia
|
8.8 | 1.00 | 1.48 | |||||||||
North America
|
2.83 | 2.94 | 0.74 | |||||||||
Other
|
5.73 | 4.64 | 0.22 | |||||||||
Total
|
100.00 | 100.00 | 100.00 |
6.
|
Cash and cash equivalents
|
2013
|
2012
|
|||||||
Brazilian Reais
|
||||||||
Cash
|
133 | 654 | ||||||
Bank accounts
|
290,224 | 127,178 | ||||||
Financial investments
|
2,197,503 | 1,519,965 | ||||||
U.S. Dollars
|
||||||||
Bank accounts
|
5,319 | 6,349 | ||||||
2,493,179 | 1,654,146 |
2013
|
2012
|
|||||||
Exclusive founds
|
||||||||
Commitment transactions
|
1,237,501 | 811,119 | ||||||
Bank certificate of deposit - CDB
|
675,262 | 411,000 | ||||||
Public securities
|
108,122 | 32,015 | ||||||
2,020,885 | 1,254,134 | |||||||
Banks investments
|
||||||||
Other financial investments
|
176,618 | 265,831 | ||||||
176,618 | 265,831 | |||||||
Total
|
2,197,503 | 1,519,965 | ||||||
7.
|
Restricted cash
|
2013
|
2012
|
|||||||
Restricted financial investments
|
51,350 | 48,292 | ||||||
Margin calls in connection with
|
||||||||
derivative transactions
|
41,246 | 45,976 | ||||||
92,596 | 94,268 |
8.
|
Trade receivables
|
2013
|
2012
|
|||||||
Domestic
|
1,770,615 | 984,034 | ||||||
Foreign
|
105,940 | 164,681 | ||||||
Allowance for doubtful accounts
|
(111,610 | ) | (103,501 | ) | ||||
1,764,945 | 1,045,214 | |||||||
Current
|
1,691,559 | 963,587 | ||||||
Non-current
|
73,386 | 81,627 |
2013
|
2012
|
|||||||
Not overdue
|
1,529,738 | 846,453 | ||||||
Overdue 1–30 days
|
152,092 | 100,339 | ||||||
Overdue 31–60 days
|
24,293 | 16,535 | ||||||
Overdue 61–90 days
|
10,164 | 8,476 | ||||||
Overdue more than 90 days
|
48,658 | 73,411 | ||||||
Total
|
1,764,945 | 1,045,214 |
At April 1, 2010
|
(97,721 | ) | ||
Provision
|
(17,844 | ) | ||
Reversal
|
18,238 | |||
Write-offs
|
6,130 | |||
At March 31, 2011
|
(91,197 | ) | ||
Provision
|
(28,003 | ) | ||
Reversal
|
26,711 | |||
Write-offs
|
935 | |||
Net addition on the de-recognition of
|
||||
subsidiaries to form the Joint Venture (a)
|
(11,135 | ) | ||
Business combination
|
(812 | ) | ||
At March 31, 2012
|
(103,501 | ) | ||
Provision
|
(20,108 | ) | ||
Reversal
|
8,119 | |||
Write-offs
|
3,880 | |||
At March 31, 2013
|
(111,610 | ) |
|
(a)
|
The Company has reflected this roll-forward activity as a “net” adjustment. This net adjustment would actually represent the deconsolidation of 100% of the allowance for doubtful accounts of subsidiaries de-recognized, and the addition of 50% of the fair value of the allowance for doubtful accounts of the JVs then proportionally consolidated.
|
9.
|
Inventories
|
2013
|
2012
|
|||||||
Finished goods
|
||||||||
Sugar
|
31,532 | 87,110 | ||||||
Ethanol
|
65,669 | 101,994 | ||||||
Fuel
|
456,844 | 276,867 | ||||||
Lubricants
|
160,751 | 112,492 | ||||||
Raw material
|
19,613 | 52,586 | ||||||
Spare parts and others
|
183,291 | 121,643 | ||||||
Provision for inventory realization
|
||||||||
and obsolescence
|
(5,790 | ) | (4,542 | ) | ||||
911,910 | 748,150 |
At April 1, 2010
|
(25,260 | ) | ||
Provision
|
(13,483 | ) | ||
Reversal
|
19,176 | |||
At March 31, 2011
|
(19,567 | ) | ||
Provision
|
(1,697 | ) | ||
Reversal
|
5,173 | |||
Write-offs
|
4,815 | |||
Net addition on the de-recognition of
|
||||
subsidiaries to form the JVs (a)
|
6,734 | |||
At March 31, 2012
|
(4,542 | ) | ||
Provision
|
(2,163 | ) | ||
Reversal
|
- | |||
Write-offs
|
915 | |||
At March 31, 2013
|
(5,790 | ) |
|
(a)
|
The Company has reflected this roll-forward activity as a “net” adjustment. This net adjustment would actually represent the deconsolidation of 100% of the inventory provision of subsidiaries de-recognized, and the addition of 50% of the fair value of the inventory provision of the JVs then proportionally consolidated.
|
10.
|
Income tax and recoverable taxes
|
2013
|
2012
|
|||||||
Income tax (i)
|
152,906 | 107,561 | ||||||
152,906 | 107,561 | |||||||
Recoverable taxes
|
||||||||
COFINS - Revenue tax
|
42,897 | 63,727 | ||||||
PIS - Revenue tax
|
14,474 | 18,614 | ||||||
ICMS - State VAT
|
289,865 | 194,818 | ||||||
IPI - Excise tax
|
55,564 | 43,039 | ||||||
Other
|
12,202 | 9,193 | ||||||
415,002 | 329,391 | |||||||
Total
|
567,909 | 436,952 | ||||||
Current
|
431,603 | 325,096 | ||||||
Non-current
|
136,305 | 111,856 |
|
(i)
|
Composed of taxes and contributions overpaid that will be offset by future obligations.
|
11.
|
Other financial assets
|
2013
|
2012
|
|||||||
Fair value of Radar option
|
- | 140,820 | ||||||
Brazilian Treasury Certificates (a)
|
180,188 | 149,438 | ||||||
ExxonMobil financial assets -
|
||||||||
reimbursement (b)
|
295,781 | 540,224 | ||||||
Receivable from sale of discontinued
|
||||||||
operations (Note 31)
|
210,467 | - | ||||||
686,436 | 830,482 | |||||||
Current
|
59,299 | 40,080 | ||||||
Non-current
|
627,137 | 790,402 |
|
(a)
|
Represents bonds issued by the Brazilian National Treasury under the Special Program for Agricultural Securitization ("PESA") with original maturities of 20 years (April 2023) in connection with the long-term debt denominated PESA (Note 19). These bonds have yields of inflation (IGP-M) plus 12% p.a. The value of these securities at maturity is expected to be equal to the amount due to PESA at that date. Even if the PESA debt is prepaid, the Company can maintain this investment through to maturity.
|
|
|
|
(b)
|
On June 28, 2011, Cosan Lubrificantes e Especialides S.A., the successor entity of Esso Brasileira de Petróleo Ltda. ("Essobrás"), joined the Brazilian Government's tax amnesty and refinancing program upon request of ExxonMobil Brasil Holdings B.V. ("ExxonMobil"). ExxonMobil is the entity that is legally responsible for the tax contingencies up to the acquisition date of Essobras by the Company. As at March 31, 2012, the liability amounted to R$ 534,363 and is being refunded to the Company by ExxonMobil. On November 30, 2012, ExxonMobil settled R$ 211,637, with a prepayment discount of R$ 39,471.
|
12.
|
Related parties
|
|
(a)
|
Receivables from and payables to related parties are as follows:
|
2013
|
2012
|
|||||||
Current asset
|
||||||||
Commercial operations
|
||||||||
Shell Brazil Holding B.V. (i)
|
85,283 | 71,167 | ||||||
Raízen Energia S.A. (ii)
|
13,023 | 21,554 | ||||||
Raízen Combustíveis S.A. (ii)
|
2,049 | 14,242 | ||||||
Rezende Barbosa Group (iii)
|
- | 2,116 | ||||||
Other
|
6,089 | 5,138 | ||||||
106,444 | 114,217 | |||||||
Corporate operations / Agreements
|
||||||||
Shell Brazil Holding B.V. (i)
|
75,002 | 65,679 | ||||||
Raízen Energia S.A. (ii)
|
13,825 | - | ||||||
88,827 | 65,679 | |||||||
Capital to be paid
|
||||||||
Shell Brazil Holding B.V. (i)
|
- | 489,856 | ||||||
- | 489,856 | |||||||
Financial operations
|
||||||||
Rezende Barbosa Group (iii)
|
7,205 | 7,354 | ||||||
Raízen Energia S.A. (ii)
|
- | 1,013 | ||||||
Other
|
- | 255 | ||||||
7,205 | 8,622 | |||||||
Current assets
|
202,476 | 678,374 |
2013
|
2012
|
|||||||
Non-current asset
|
||||||||
Comercial operations
|
||||||||
Shell Brazil Holding B.V. (i)
|
- | 4,737 | ||||||
Other
|
395 | 169 | ||||||
395 | 4,906 | |||||||
Corporate operations / Agreements
|
||||||||
Shell Brazil Holding B.V. (i)
|
262,230 | 244,046 | ||||||
Raízen Energia S.A. (ii)
|
161,276 | 214,740 | ||||||
Raízen Combustíveis S.A. (ii)
|
39,912 | 87,810 | ||||||
463,418 | 546,596 | |||||||
Financial operations
|
||||||||
Rezende Barbosa Group (iii)
|
127,828 | 105,751 | ||||||
Impulso Empr. e Participações Ltda.
|
2,825 | - | ||||||
Other
|
1,756 | 67 | ||||||
132,409 | 105,818 | |||||||
Corporate restructuring
|
||||||||
Shell Brazil Holding B.V. (i)
|
83,680 | 86,535 | ||||||
CTC - Centro de Tecnologia Canavieira
|
- | 9,298 | ||||||
Other
|
1,610 | - | ||||||
85,290 | 95,833 | |||||||
Non-current assets
|
681,512 | 753,153 | ||||||
Total assets
|
883,988 | 1,431,527 | ||||||
Current liabilities
|
||||||||
Comercial operations
|
||||||||
Raízen Energia S.A. (ii)
|
8,250 | 38,439 | ||||||
Rezende Barbosa Group (iii)
|
4,340 | 12,577 | ||||||
Shell Brazil Holding B.V. (i)
|
3,361 | 5,433 | ||||||
Raízen Combustíveis S.A. (ii)
|
487 | 321 | ||||||
Other
|
240 | 13,836 | ||||||
16,678 | 70,606 | |||||||
Corporate operations / Agreements
|
||||||||
Shell Brazil Holding B.V. (i)
|
63,852 | 77,631 | ||||||
Raízen Energia S.A. (ii)
|
29,896 | 26,140 | ||||||
Raízen Combustíveis S.A. (ii)
|
4,658 | - | ||||||
Other
|
2,276 | - | ||||||
100,682 | 103,771 | |||||||
Financial operations
|
||||||||
Other
|
- | 1,111 | ||||||
- | 1,111 | |||||||
Current liabilities
|
117,360 | 175,488 |
2013
|
2012
|
|||||||
Non-current liabilities
|
||||||||
Comercial operations
|
||||||||
Raízen Energia S.A. (ii)
|
1,175 | 790 | ||||||
Other
|
13 | 991 | ||||||
1,188 | 1,781 | |||||||
Corporate operations / Agreements
|
||||||||
Shell Brazil Holding B.V. (i)
|
317,275 | 130,883 | ||||||
Other
|
2 | 8,311 | ||||||
317,277 | 139,194 | |||||||
Preferred shares
|
||||||||
Shell Brazil Holding B.V. (i)
|
- | 248,743 | ||||||
- | 248,743 | |||||||
Non-current liabilities
|
318,465 | 389,718 | ||||||
Total liabilities
|
435,825 | 565,206 |
|
(b)
|
Related party transactions are as follows:
|
2013
|
2012
|
2011
|
||||||||||
Product sales
|
||||||||||||
Vertical UK LLP (iv)
|
- | 75,338 | 160,202 | |||||||||
Shell Western Supply & Trading Limited
|
173,627 | - | - | |||||||||
Aguassanta Participações S.A.(v)
|
- | - | 39,131 | |||||||||
Other
|
877 | 441 | 832 | |||||||||
174,504 | 75,779 | 200,165 | ||||||||||
Purchase of goods / inputs
|
||||||||||||
Rezende Barbosa Group (iii)
|
201,149 | 263,859 | 352,195 | |||||||||
Vertical UK LLP (iv)
|
- | 113,518 | - | |||||||||
Other
|
- | 7,032 | - | |||||||||
201,149 | 384,409 | 352,195 | ||||||||||
Land lease
|
||||||||||||
Radar Propriedades Agrícolas S.A.(vi)
|
26,280 | 22,532 | 28,446 | |||||||||
Aguassanta Participações S.A.(v)
|
18,261 | 17,577 | 26,459 | |||||||||
44,541 | 40,109 | 54,905 | ||||||||||
Financial result
|
||||||||||||
Shell Brazil Holding B.V. (i)
|
119,308 | 148,733 | - | |||||||||
Rezende Barbosa Group (iii)
|
1,685 | 2,502 | 233 | |||||||||
Other
|
(898 | ) | 242 | 512 | ||||||||
120,095 | 151,477 | 745 | ||||||||||
540,289 | 651,774 | 608,010 |
|
(i)
|
Shell Brazil Holding B.V.
|
|
(ii)
|
Raízen Energia and Raízen Combustíveis
|
(iii)
|
Rezende Barbosa Group
|
(iv)
|
Vertical UK LLP
|
|
(v)
|
Aguassanta Participações S.A.
|
(vi)
|
Radar Propriedades Agrícolas S.A.
|
|
(c)
|
Officers’ and directors’ compensation
|
2013
|
2012
|
2011
|
||||||||||
Regular compensation
|
31,922 | 24,994 | 7,894 | |||||||||
Stock option expense (Note 34)
|
13,295 | 10,800 | 2,961 | |||||||||
Bonuses and other variable compensation
|
61,377 | 33,075 | 23,791 | |||||||||
Total compensation recorded as expense
|
106,594 | 68,869 | 34,646 |
13.
|
Business combinations and other acquisitions
|
|
(i)
|
Companhia de Gás de São Paulo (“COMGÁS”)
|
Consideration
|
||||
At November 05, 2012
|
||||
Consideration transferred
|
3,400,000 | |||
Cash acquired
|
(426,876 | ) | ||
Total of consideration transferred
|
2,973,124 | |||
Recognized values of the assets acquired
|
||||
and liabilities assumed
|
||||
Trade receivables
|
694,047 | |||
Allowance for doubtful accounts
|
(95,480 | ) | ||
Financial instruments
|
144,330 | |||
Inventories
|
99,424 | |||
Intangible assets
|
7,979,275 | |||
Other credits
|
351,333 | |||
Loans and borrowings
|
(2,544,953 | ) | ||
Trade payables
|
(692,480 | ) | ||
Taxes payable
|
(208,489 | ) | ||
Deferred tax liabilities
|
(442,262 | ) | ||
Provision for judicial demands
|
(51,592 | ) | ||
Other liabilities
|
(391,193 | ) | ||
Net assets acquired
|
4,841,960 | |||
Non-controlling interests
|
(1,868,836 | ) | ||
Consideration transferred
|
2,973,124 |
|
(ii)
|
Radar Propriedades Agrícolas S.A. (“Radar”)
|
Fair value of previously held equity interest
|
349,139 | |||
Fair value of identifiable net assets acquired
|
1,845,341 | |||
Percent interest
|
18.92 | |||
Fair value of identifiable net assets acquired
|
349,139 |
Description
|
||||
Cash and cash equivalents
|
111,654 | |||
Trade receivables
|
19,995 | |||
Other credits
|
8,062 | |||
Equity method investments
|
6,579 | |||
Property, plant and equipment
|
8,248 | |||
Investment property
|
1,784,413 | |||
Trade payables
|
(4,185 | ) | ||
Dividends payable
|
(21,015 | ) | ||
Deferred tax liabilities
|
(52,126 | ) | ||
Other liabilities
|
(16,284 | ) | ||
Consolidated net assets
|
1,845,341 | |||
Non-controlling interests
|
1,496,202 | |||
Previously held equity interest
|
349,139 |
|
(iii)
|
Comma Oil and Chemicals Limited (“Comma”)
|
Consideration transferred
|
190,234 | |||
Cash receivable
|
(37,315 | ) | ||
152,919 |
Description
|
||||
Trade receivables
|
46,468 | |||
Inventories
|
33,672 | |||
Other credits
|
472 | |||
Property, plant and equipment
|
34,409 | |||
Intangible assets
|
49,493 | |||
Trade payables
|
(21,284 | ) | ||
Taxes payable
|
(3,900 | ) | ||
Other liabilities
|
(1,227 | ) | ||
Deferred tax liabilities
|
(17,143 | ) | ||
Net assets acquired
|
120,960 | |||
Consideration transferred,
|
||||
net of cash acquired
|
152,919 | |||
Goodwill
|
31,959 |
|
(iv)
|
Mime Distribuidora de Petróleo Ltda. (“Mime”)
|
Description
|
||||
Cash and cash equivalents
|
246 | |||
Trade receivables
|
58,739 | |||
Allowance for doubtful accounts
|
(143 | ) | ||
Inventories
|
8,734 | |||
Recoverable taxes
|
849 | |||
Other credits
|
1,725 | |||
Property, plant and equipment
|
50,196 | |||
Intangible assets
|
80,652 | |||
Loans and borrowings
|
(15,264 | ) | ||
Trade payables
|
(5,594 | ) | ||
Related parties
|
(16,527 | ) | ||
Deferred tax liabilities
|
(25,275 | ) | ||
Other liabilities
|
(7,980 | ) | ||
Non-controlling interests
|
(36,109 | ) | ||
Net assets acquired
|
94,249 | |||
Consideration transferred
|
(76,982 | ) | ||
Gain on a bargain purchase
|
17,267 |
|
(v)
|
Costa Rica Canavieira Ltda. (“Costa Rica”)
|
Biological assets
|
20,827 | |||
Land leases agreement
|
9,375 | |||
Agricultural contracts partially assessed (i)
|
19,730 | |||
Total identified net assets
|
49,932 | |||
Consideration transferred,
|
||||
net of cash acquired
|
108.434 | |||
Preliminary goodwill
|
58,502 |
|
(i)
|
On September 26, 2012, Raízen Energia sold to São Martinho S.A. rights relating to agricultural contracts previously acquired through the acquisition of Costa Rica’s business combination for R$19,730.
|
14.
|
Equity method investments
|
Issued
|
Number of
|
Adjustments
|
Acquisitions /
|
Share of
|
Share of
|
|||||||||||||||||||||||||||||||||||||||||||||||||||
shares of the
|
shares / held
|
Percentage
|
March 31,
|
Equity
|
of equity
|
disposals /
|
Radar's
|
Capital
|
March 31,
|
profit (loss)
|
profit (loss)
|
|||||||||||||||||||||||||||||||||||||||||||||
investe
|
by Cosan
|
of interest (%)
|
2012
|
pick-up
|
evaluation
|
Dividends
|
mergers
|
consolidation
|
increase
|
Other
|
2013
|
2012
|
2011
|
|||||||||||||||||||||||||||||||||||||||||||
Radar Propriedades Agrícolas S.A.
|
21,148,989 | 4,001,167 | 18.92 | 283,259 | 67,611 | - | (2,831 | ) | - | (348,039 | ) | - | - | - | 22,514 | 28,658 | ||||||||||||||||||||||||||||||||||||||||
Codexis Inc. (a)
|
35,965,000 | 5,573,000 | 15.50 | 49,866 | (4,758 | ) | 4,259 | - | - | - | - | 4,672 | 54,039 | (1,086 | ) | - | ||||||||||||||||||||||||||||||||||||||||
Logum Logística S.A. ("Logum") (a)
|
430,556,443 | 86,111,288 | 20.00 | 25,731 | (6,091 | ) | - | - | - | - | - | - | 19,640 | (4,796 | ) | - | ||||||||||||||||||||||||||||||||||||||||
Uniduto Logística (a)
|
106,973,748 | 49,188,382 | 45.98 | 6,959 | (620 | ) | - | - | - | - | - | 3,418 | 9,757 | - | - | |||||||||||||||||||||||||||||||||||||||||
Tellus Brasil Participações Ltda. (b)
|
12,201,794 | 23,572,145 | 51.00 | 7,979 | 7,337 | 93 | - | - | - | 23,489 | 930 | 39,828 | - | - | ||||||||||||||||||||||||||||||||||||||||||
CTC - Centro Tecnologia Canavieira S.A. (a)
|
73,102 | 634,400 | 11.52 | 4,892 | - | - | - | 2,552 | - | 15,156 | (509 | ) | 22,091 | - | - | |||||||||||||||||||||||||||||||||||||||||
Other investments
|
- | - | 0.00 | 40,343 | (4,619 | ) | 2,553 | - | - | (14,548 | ) | (3,108 | ) | 2,056 | 22,677 | 16,636 | (3,471 | ) | ||||||||||||||||||||||||||||||||||||||
419,029 | 58,860 | 6,905 | (2,831 | ) | 2,552 | (362,587 | ) | 35,537 | 10,567 | 168,032 | 33,268 | 25,187 |
At March 31, 2013
|
||||||||||||||||
Assets
|
Liabilities
|
Equity
|
Income
|
|||||||||||||
Codexis Inc. (a)
|
201,310 | 43,347 | 157,962 | (62,037 | ) | |||||||||||
Logum Logística S.A. ("Logum") (a)
|
1,083,020 | 886,615 | 196,405 | (60,906 | ) | |||||||||||
Uniduto Logística (a)
|
30,558 | 24 | 30,534 | (539 | ) | |||||||||||
Tellus Brasil Participações Ltda. (b)
|
800,479 | 22,459 | 778,020 | 124,079 | ||||||||||||
CTC - Centro Tecnologia Canavieira S.A. (a)
|
216,910 | 56,859 | 160,051 | (2,490 | ) | |||||||||||
4,304,723 | 1,067,284 | 3,237,438 | 141,251 |
At March 31, 2012
|
||||||||||||||||
Assets
|
Liabilities
|
Equity
|
Income
|
|||||||||||||
Radar Propriedades Agrícolas S.A.
|
1,685,618 | 188,392 | 1,497,226 | 162,544 | ||||||||||||
Codexis Inc. (a)
|
247,663 | 60,552 | 187,111 | (2,138 | ) | |||||||||||
Logum Logística S.A. ("Logum") (a)
|
741,782 | 484,471 | 257,311 | (28,670 | ) | |||||||||||
2,675,063 | 733,415 | 1,941,648 | 131,736 |
At March 31, 2011
|
||||||||||||||||
Assets
|
Liabilities
|
Equity
|
Income
|
|||||||||||||
Radar Propriedades Agrícolas S.A.
|
1,804,609 | 426,355 | 1,378,254 | 151,421 | ||||||||||||
Logum Logística S.A. ("Logum") (a)
|
101,982 | 8,343 | 93,639 | (4,829 | ) | |||||||||||
1,906,591 | 434,698 | 1,471,893 | 146,592 |
|
(a)
|
Shares held by Raízen Energia. The definition of significant influence in these associates was due to the Company's right to appoint key management, as well as the rights to participate in key decisions relating to relevant operational and strategic issues.
|
|
(b)
|
The Company is entitled to 5% of the economic benefits of this associate as established in shareholders agreement.
|
15.
|
Investment property
|
At March 31, 2012
|
- | |||
Effect of business combination ("Radar")
|
1,784,413 | |||
Transfer of assets between segments
|
468,152 | |||
Fair value of assets transferred - initial recognition
|
83,318 | |||
Change in fair value
|
138,776 | |||
Disposals
|
(1,221 | ) | ||
At March 31, 2013
|
2,473,438 |
16.
|
Biological assets
|
At April 1, 2010
|
963,244 | |||
Change in fair value, net
|
381,894 | |||
Increase due to planning and growing costs
|
745,572 | |||
Harvested sugarcane transferred to inventories
|
(616,693 | ) | ||
Business combination
|
87,115 | |||
At March 31, 2011
|
1,561,132 | |||
Change in fair value, net
|
60,093 | |||
Increase due to planning and growing costs
|
551,974 | |||
Harvested sugarcane transferred to inventories
|
(401,592 | ) | ||
Proportional consolidation impact due to the
|
||||
formation of Joint Ventures (50%) (b)
|
(803,584 | ) | ||
At March 31, 2012
|
968,023 | |||
Change in fair value, net
|
(112,511 | ) | ||
Increase due to planning and growing costs
|
474,392 | |||
Harvested sugarcane transferred to inventories (a)
|
(351,079 | ) | ||
Business combination - Costa Rica
|
10,414 | |||
At March 31, 2013
|
989,239 |
|
(a)
|
R$18,451 of this amount was allocated in sugar and ethanol inventory as of March 31, 2013;
|
|
(b)
|
The Company has reflected this roll-forward activity as a “net” adjustment. This net adjustment would actually represent the de-consolidation of 100% of the biological assets of subsidiaries de-recognized, and the addition of 50% of the fair value of the biological assets of the Joint Ventures then proportionally consolidated.
|
2013
|
2012
|
|||||||
Crop area (hectares)
|
391,162 | 382,798 | ||||||
Expect productivity (tons of cane per hectare)
|
81.09 | 78.20 | ||||||
Total amount of recoverable sugar - TRS(kg)
|
133.460 | 137.270 | ||||||
Price kg TRS projected average (R$/kg)
|
0.4728 | 0.4881 | ||||||
Average age of ratoons
|
3.710 | 3.950 |
17.
|
Property, plant and equipment
|
At March 31, 2012 | Additions | Disposals | Capitalization/ Reclassification |
"Cosan Alimentos" de-consolidation | Business combination | At March 31, 2013 | ||||||||||||||||||||||
Cost
|
||||||||||||||||||||||||||||
Land and Rural Properties
|
1,570,489 | 2,450 | (135,060 | ) | (570,474 | ) | (8 | ) | 1,461 | 868,858 | ||||||||||||||||||
Buildings and Improvements
|
1,069,914 | 1,170 | (13,229 | ) | (40,001 | ) | (61,798 | ) | 29,818 | 985,874 | ||||||||||||||||||
Machinery, Equipment and Facilities
|
5,274,545 | 48,357 | (123,779 | ) | 850,430 | (28,471 | ) | 13,316 | 6,034,398 | |||||||||||||||||||
Airplanes, vessels and vehicles
|
334,157 | 277 | (4,810 | ) | (51,258 | ) | (333 | ) | - | 278,033 | ||||||||||||||||||
Rail Cars and Locomotives
|
391,647 | 41,511 | - | 9,102 | - | - | 442,260 | |||||||||||||||||||||
Furniture and Fixtures and Computer Equipment
|
125,267 | 538 | (8,551 | ) | 16,050 | (2,658 | ) | 814 | 131,460 | |||||||||||||||||||
Construction in progress
|
675,000 | 790,047 | (161 | ) | (761,204 | ) | (9,860 | ) | 2,032 | 695,854 | ||||||||||||||||||
Renovation and maintenance of machines and equipment
|
263,449 | 301,147 | - | (276,826 | ) | - | - | 287,770 | ||||||||||||||||||||
Other
|
157,508 | 5 | (603 | ) | (142,226 | ) | - | - | 14,684 | |||||||||||||||||||
9,861,976 | 1,185,502 | (286,193 | ) | (966,407 | ) | (103,128 | ) | 47,441 | 9,739,191 | |||||||||||||||||||
Depreciation
|
||||||||||||||||||||||||||||
Buildings and Improvements
|
(262,910 | ) | (32,487 | ) | 6,292 | (14,476 | ) | 6,847 | - | (296,734 | ) | |||||||||||||||||
Machinery, Equipment and Facilities
|
(1,388,712 | ) | (305,761 | ) | 58,278 | (73,615 | ) | 17,816 | - | (1,691,994 | ) | |||||||||||||||||
Airplanes, vessels and vehicles
|
(138,935 | ) | (18,753 | ) | 4,345 | 10,126 | 253 | - | (142,964 | ) | ||||||||||||||||||
Rail Cars and Locomotives
|
(18,397 | ) | (13,267 | ) | - | - | - | - | (31,664 | ) | ||||||||||||||||||
Furniture and Fixtures and Computer Equipment
|
(81,302 | ) | (12,349 | ) | 7,403 | (76 | ) | 1,661 | - | (84,663 | ) | |||||||||||||||||
Renovation and maintenance of machines and equipment
|
- | (308,381 | ) | - | 263,449 | - | - | (44,932 | ) | |||||||||||||||||||
Other
|
(104,757 | ) | (732 | ) | 674 | 93,678 | - | - | (11,137 | ) | ||||||||||||||||||
(1,995,013 | ) | (691,730 | ) | 76,992 | 279,086 | 26,577 | - | (2,304,088 | ) | |||||||||||||||||||
Total
|
7,866,963 | 493,772 | (209,201 | ) | (687,321 | ) | (76,551 | ) | 47,441 | 7,435,103 |
De-consolidation
|
||||||||||||||||||||||||||||
At March 31,
|
Capitalization /
|
and JV's
|
Business
|
At March 31,
|
||||||||||||||||||||||||
2011
|
Additions
|
Disposals
|
Reclassification
|
formation, net (a)
|
combination
|
2012
|
||||||||||||||||||||||
Cost
|
||||||||||||||||||||||||||||
Land and Rural Properties
|
1,263,240 | - | (40,011 | ) | 15,965 | 384,561 | (53,266 | ) | 1,570,489 | |||||||||||||||||||
Buildings and Improvements
|
1,122,256 | 4,764 | (24,559 | ) | 89,661 | (153,107 | ) | 30,899 | 1,069,914 | |||||||||||||||||||
Machinery, Equipment and Facilities
|
4,980,432 | 49,056 | (30,209 | ) | 330,325 | (69,256 | ) | 14,197 | 5,274,545 | |||||||||||||||||||
Airplanes, vessels and vehicles
|
353,945 | 7,885 | (11,449 | ) | 10,312 | (26,703 | ) | 167 | 334,157 | |||||||||||||||||||
Rail Cars and Locomotives
|
341,647 | - | - | 50,000 | - | - | 391,647 | |||||||||||||||||||||
Furniture and Fixtures and Computer Equipment
|
137,206 | 520 | (21,012 | ) | 16,114 | (8,869 | ) | 1,308 | 125,267 | |||||||||||||||||||
Construction in progress
|
1,367,712 | 980,855 | (6,022 | ) | (782,761 | ) | (888,103 | ) | 3,319 | 675,000 | ||||||||||||||||||
Renovation and maintenance of machines and equipment
|
1,043,342 | 362,511 | (747,891 | ) | - | (394,513 | ) | - | 263,449 | |||||||||||||||||||
Other
|
4,782 | 13,077 | (17,715 | ) | 796 | 156,568 | - | 157,508 | ||||||||||||||||||||
10,614,562 | 1,418,668 | (898,868 | ) | (269,588 | ) | (999,422 | ) | (3,376 | ) | 9,861,976 | ||||||||||||||||||
Depreciation
|
||||||||||||||||||||||||||||
Buildings and Improvements
|
(287,620 | ) | (43,716 | ) | 11,539 | - | 59,344 | (2,457 | ) | (262,910 | ) | |||||||||||||||||
Machinery, Equipment and Facilities
|
(1,472,512 | ) | (288,990 | ) | 19,506 | 14,968 | 346,824 | (8,508 | ) | (1,388,712 | ) | |||||||||||||||||
Airplanes, vessels and vehicles
|
(165,341 | ) | (26,506 | ) | 5,610 | - | 47,416 | (114 | ) | (138,935 | ) | |||||||||||||||||
Rail Cars and Locomotives
|
(6,128 | ) | (12,269 | ) | - | - | - | - | (18,397 | ) | ||||||||||||||||||
Furniture and Fixtures and Computer Equipment
|
(87,460 | ) | (11,297 | ) | 18,750 | - | (559 | ) | (736 | ) | (81,302 | ) | ||||||||||||||||
Renovation and maintenance of machines and equipment
|
(611,859 | ) | (303,082 | ) | 747,891 | - | 167,050 | - | - | |||||||||||||||||||
Other
|
(3,118 | ) | (6,942 | ) | 9,297 | - | (103,994 | ) | - | (104,757 | ) | |||||||||||||||||
(2,634,038 | ) | (692,802 | ) | 812,593 | 14,968 | 516,081 | (11,815 | ) | (1,995,013 | ) | ||||||||||||||||||
Total
|
7,980,524 | 725,866 | (86,275 | ) | (254,620 | ) | (483,341 | ) | (15,191 | ) | 7,866,963 |
(a)
|
The Company has reflected this roll-forward activity as a “net” adjustment. This net adjustment would actually represent the de-consolidation of 100% of the property, plant and equipment of subsidiaries de-recognized, and the addition of 50% of the property, plant and equipment of the JVs then proportionally consolidated.
|
18.
|
Intangible assets
|
"Cosan
|
||||||||||||||||||||||||||||
At March 31,
|
Capitalization /
|
Alimentos" de-
|
Business
|
At March 31,
|
||||||||||||||||||||||||
2012
|
Additions
|
Disposals
|
Reclassification
|
consolidation
|
combination
|
2013
|
||||||||||||||||||||||
Cost
|
||||||||||||||||||||||||||||
Software licenses
|
106,970 | 8,601 | (1,832 | ) | 4,715 | (128 | ) | 98,708 | 217,034 | |||||||||||||||||||
Trademarks
|
608,411 | - | (2,412 | ) | (1,770 | ) | (83,585 | ) | 26,616 | 547,260 | ||||||||||||||||||
Goodwill
|
2,932,254 | - | - | 1,580 | - | 110,555 | 3,044,389 | |||||||||||||||||||||
Operation Licenses
|
282,734 | - | - | - | - | - | 282,734 | |||||||||||||||||||||
Concession right
|
- | 237,316 | (9,117 | ) | - | - | 7,513,941 | 7,742,140 | ||||||||||||||||||||
Customer agreements and related
|
||||||||||||||||||||||||||||
customer relationships
|
602,646 | 92,829 | (434 | ) | 60,230 | - | 419,786 | 1,175,057 | ||||||||||||||||||||
Leases
|
79,919 | - | (9,866 | ) | 1,769 | - | 9,866 | 81,688 | ||||||||||||||||||||
Distribution rights
|
451,371 | 179,440 | - | 35,487 | - | 1,598 | 667,896 | |||||||||||||||||||||
Improvements in public concessions
|
236,397 | - | - | 105,152 | - | - | 341,549 | |||||||||||||||||||||
Other
|
122,072 | - | (8 | ) | (69,930 | ) | - | - | 52,134 | |||||||||||||||||||
5,422,774 | 518,186 | (23,669 | ) | 137,233 | (83,713 | ) | 8,181,070 | 14,151,881 | ||||||||||||||||||||
Amortization:
|
||||||||||||||||||||||||||||
Software licenses
|
(85,056 | ) | (24,688 | ) | 1,785 | 3 | 116 | - | (107,840 | ) | ||||||||||||||||||
Trademarks
|
(110,431 | ) | (70,934 | ) | - | 1,770 | - | - | (179,595 | ) | ||||||||||||||||||
Operation Licenses
|
- | (11,740 | ) | - | - | - | - | (11,740 | ) | |||||||||||||||||||
Concession right
|
- | (135,053 | ) | 8,006 | - | - | - | (127,047 | ) | |||||||||||||||||||
Customer agreements and related
|
||||||||||||||||||||||||||||
customer relationships
|
(66,146 | ) | (118,070 | ) | 436 | (76,155 | ) | - | - | (259,935 | ) | |||||||||||||||||
Leases
|
(12,652 | ) | (3,496 | ) | - | 14,288 | - | - | (1,860 | ) | ||||||||||||||||||
Distribution rights
|
(133,655 | ) | (94,218 | ) | - | (17,835 | ) | - | - | (245,708 | ) | |||||||||||||||||
Improvements in public concessions
|
(14,968 | ) | (16,420 | ) | - | (25 | ) | - | - | (31,413 | ) | |||||||||||||||||
Other
|
(67,611 | ) | (7,855 | ) | - | 50,561 | - | - | (24,905 | ) | ||||||||||||||||||
(490,519 | ) | (482,474 | ) | 10,227 | (27,393 | ) | 116 | - | (990,043 | ) | ||||||||||||||||||
Total
|
4,932,255 | 35,712 | (13,442 | ) | 109,840 | (83,597 | ) | 8,181,070 | 13,161,838 |
De-consolidation
|
||||||||||||||||||||||||||||
At March 31,
|
Capitalization /
|
and JV's
|
Business
|
At March 31,
|
||||||||||||||||||||||||
2011
|
Additions
|
Disposals
|
Reclassification
|
formation, net (a)
|
combination
|
2012
|
||||||||||||||||||||||
Cost
|
||||||||||||||||||||||||||||
Software licenses
|
98,063 | 849 | (20 | ) | 14,954 | (6,992 | ) | 116 | 106,970 | |||||||||||||||||||
Trademarks
|
429,671 | - | (11,286 | ) | - | 190,026 | - | 608,411 | ||||||||||||||||||||
Goodwill
|
2,697,221 | - | (637,534 | ) | - | 836,601 | 35,966 | 2,932,254 | ||||||||||||||||||||
Operation Licenses and
|
||||||||||||||||||||||||||||
Customer relationships
|
583,420 | 23,437 | - | 8,857 | 269,666 | - | 885,380 | |||||||||||||||||||||
Leases
|
155,505 | - | (232 | ) | - | (75,354 | ) | - | 79,919 | |||||||||||||||||||
Distribution rights
|
170,291 | 129,340 | - | 9,381 | 142,359 | - | 451,371 | |||||||||||||||||||||
Improvements in public concessions
|
- | - | - | 236,397 | - | - | 236,397 | |||||||||||||||||||||
Other
|
43,263 | 12,249 | (8,649 | ) | - | 75,209 | - | 122,072 | ||||||||||||||||||||
4,177,434 | 165,875 | (657,721 | ) | 269,589 | 1,431,515 | 36,082 | 5,422,774 | |||||||||||||||||||||
Amortization:
|
||||||||||||||||||||||||||||
Software licenses
|
(66,111 | ) | (8,508 | ) | 20 | - | (10,357 | ) | (100 | ) | (85,056 | ) | ||||||||||||||||
Trademarks
|
(98,710 | ) | (44,579 | ) | - | - | 32,858 | - | (110,431 | ) | ||||||||||||||||||
Operation Licenses and
|
||||||||||||||||||||||||||||
Customer relationships
|
(41,038 | ) | (46,904 | ) | - | - | 21,796 | - | (66,146 | ) | ||||||||||||||||||
Leases
|
(15,118 | ) | (3,792 | ) | 232 | - | 6,026 | - | (12,652 | ) | ||||||||||||||||||
Distribution rights
|
(62,387 | ) | (36,627 | ) | - | - | (34,641 | ) | - | (133,655 | ) | |||||||||||||||||
Improvements in public concessions
|
- | - | - | (14,968 | ) | - | - | (14,968 | ) | |||||||||||||||||||
Other
|
(4,495 | ) | (13,945 | ) | (222 | ) | - | (48,949 | ) | - | (67,611 | ) | ||||||||||||||||
(287,859 | ) | (154,355 | ) | 30 | (14,968 | ) | (33,267 | ) | (100 | ) | (490,519 | ) | ||||||||||||||||
Total
|
3,889,575 | 11,520 | (657,691 | ) | 254,621 | 1,398,248 | 35,982 | 4,932,255 |
(a)
|
The Company has reflected this roll-forward activity as a “net” adjustment. This net adjustment would actually represent the de-consolidation of 100% of intangible assets of subsidiaries de-recognized, and the addition of 50% of the fair value of the intangible assets of the JV’s then proportionally consolidated.
|
Annual rate of
|
||||||||||||
Intangible assets (excluding goodwill)
|
amortization - %
|
2013
|
2012
|
|||||||||
Software licenses
|
20.00 | 21,502 | 21,915 | |||||||||
Trademarks (a)
|
20.00 | 212,203 | 260,313 | |||||||||
Trademark Mobil (b)
|
10.00 | 131,258 | 154,082 | |||||||||
Trademark União (c)
|
2.00 | - | 83,585 | |||||||||
Customer agreements (d)
|
3.00 | 506,917 | 535,405 | |||||||||
Operating licenses and customer agreements (e)
|
4.00 | 270,995 | 283,829 | |||||||||
Favorable operating leases (f)
|
6.00 | 79,364 | 67,267 | |||||||||
Distribution rights (g)
|
Over the life of the agreement
|
422,188 | 317,716 | |||||||||
Improvements in public concessions (h)
|
Over the life of the agreement
|
305,251 | 221,428 | |||||||||
Concession contract - COMGÁS (i)
|
Remaining concession period
|
8,071,839 | - | |||||||||
Other
|
95,931 | 54,460 | ||||||||||
Total
|
10,117,448 | 2,000,000 |
|
(a)
|
Refers to the right to use the trademark for fuel distribution through its joint venture Raízen Combustíveis;
|
|
(b)
|
Refers to the right to use the trademark of Mobil Lubricants;
|
|
(c)
|
Refers to the right to use the trademark for União sugar arising from the business combination. Reclassified to assets held for sale;
|
|
(d)
|
Refers to the relationships between Raízen Combustíveis and the gas stations that maintain its flags and the distribution contracts acquired through the business combination;
|
|
(e)
|
Refers to the Licenses to carry out port operations and the customer relationships held by Rumo, from business combinations;
|
|
(f)
|
Intangible assets related to agreements for existing land leases from business combinations;
|
|
(g)
|
Intangible assets related to customer agreements with preferred providers of products and trademarks;
|
|
(h)
|
Refers to Rumo’s transportation contract with América Latina Logística which provides for the right to charge for railroad transportation in exchange for investments in track upgrade;
|
|
(i)
|
Refers to the public concession contract of gas distribution, which represents the right to charge users for gas supply. The amortization term is 37 years (the remaining concession period, plus extension).
|
Carrying amount of goodwill
|
2013
|
2012
|
||||||
Cash-generating unit Raízen Energia S.A.
|
1,449,095 | 1,405,407 | ||||||
Cash-generating unit Raízen Combustíveis S.A.
|
889,479 | 855,907 | ||||||
Cash-generating unit Rumo
|
100,451 | 98,972 | ||||||
Cash-generating unit Cosan - Other Business
|
605,365 | 571,969 | ||||||
Total goodwill
|
3,044,390 | 2,932,255 |
19.
|
Loans and borrowings
|
Financial charges(b)
|
||||||||||||||
Nominal
|
Maturity
|
|||||||||||||
Description(a)
|
Index
|
interest rate
|
2013
|
2012
|
date
|
|||||||||
Senior Notes Due 2014
|
Dollar (USD)
|
9.50 | 356,600 | 322,654 |
Aug-14
|
|||||||||
Senior Notes Due 2017
|
Dollar (USD)
|
7.00 | 407,381 | 368,601 |
Feb-17
|
|||||||||
Senior Notes Due 2018
|
Pre-fixed
|
9.50 | 852,705 | - |
Mar-18
|
|||||||||
Senior Notes Due 2023
|
Dollar (USD)
|
5.00 | 1,009,277 | - |
Mar-23
|
|||||||||
BNDES
|
URTJLP
|
7.64 | 724,613 | 683,586 |
Oct-25
|
|||||||||
BNDES
|
Pre-fixed
|
4.50 | 192,460 | 185,568 |
Jul-20
|
|||||||||
BNDES
|
UMBND
|
6.50 | 16,621 | 18,365 |
Jul-19
|
|||||||||
BNDES
|
Dollar (USD)
|
6.86 | - | 11 |
Nov-12
|
|||||||||
BNDES
|
TJLP
|
7.98 | 709,425 | - |
Jun-17
|
|||||||||
BNDES
|
Selic
|
1.80 | 310,358 | - |
Oct-20
|
|||||||||
BNDES
|
TJ462
|
7.80 | 77,477 | - |
Oct-20
|
|||||||||
ACC
|
Dollar (USD)
|
1.90 | 25,533 | 138,369 |
Jun-13
|
|||||||||
Perpetual notes
|
Dollar (USD)
|
8.25 | 1,025,671 | 930,094 |
Nov-15
|
|||||||||
Resolution 2471 (PESA)
|
IGP-M
|
9.77 | 348,047 | 316,108 |
Apr-23
|
|||||||||
Resolution 2471 (PESA)
|
Pre-fixed
|
3.00 | 50 | 53 |
Oct-25
|
|||||||||
Rural credit
|
Pre-fixed
|
5.50 | 20,833 | 20,460 |
Nov-13
|
Financial charges (b)
|
||||||||||||||
Nominal
|
Maturity
|
|||||||||||||
Description (a)
|
Index
|
interest rate
|
2013
|
2012
|
date
|
|||||||||
Working capital
|
Dollar (USD) + Libor
|
1.78 | 659,598 | 410,002 |
Sep-16
|
|||||||||
Working capital
|
IGP-M
|
20.52 | - | 88 |
Dec-12
|
|||||||||
Working capital
|
Pre-fixed
|
14.00 | 3,927 | 5,332 |
Mar-15
|
|||||||||
Working capital
|
Dollar (USD) + Libor
|
4.46 | - | 185,312 |
Sep-16
|
|||||||||
Pre-payments
|
Dollar (USD) + Libor
|
4.18 | 459,145 | 507,454 |
Feb-16
|
|||||||||
Credit notes
|
CDI
|
7.39 | 528,986 | 341,226 |
Feb-14
|
|||||||||
Credit notes
|
Dollar (USD)
|
3.07 | - | 52,891 |
Oct-12
|
|||||||||
FINAME
|
Pre-fixed
|
4.59 | 372,559 | 397,515 |
Sep-22
|
|||||||||
FINAME
|
URTJLP
|
7.17 | 410,442 | 337,091 |
Nov-22
|
|||||||||
FINAME
|
UMBND
|
8.36 | - | 16 |
Oct-12
|
|||||||||
Leasing
|
Pre-fixed
|
15.02 | 107 | - |
Jun-14
|
|||||||||
Leasing
|
100.00% CDI
|
- | 2,020 | - |
Oct-14
|
|||||||||
Foreign loans
|
GBP + Libor Semiannual
|
4.32 | 167,021 | - |
Jun-17
|
|||||||||
Loan EIB
|
Dollar (USD) + Libor
|
2.26 | 528,902 | - |
Sep-21
|
|||||||||
Resolution 4131
|
Dollar (USD) + Libor
|
3.00 | 549,106 | - |
Feb-18
|
|||||||||
Debentures
|
CDI
|
8.62 | 1,417,149 | - |
Oct-20
|
|||||||||
Non-convertible debentures
|
CDI
|
1.50 | 70,321 | - |
Aug-14
|
|||||||||
FINEP
|
Pre-fixed
|
5.00 | 89,889 | - |
Jan-21
|
|||||||||
Promissory note
|
103.00 % CDI
|
- | 402,104 | - |
Nov-13
|
|||||||||
Credit assignment
|
CDI
|
1.38 | 60,886 | - |
May-13
|
|||||||||
Other
|
Several
|
Several
|
85,556 | - |
Several
|
|||||||||
Expenditure on issue of debt
|
(66,039 | ) | (21,407 | ) | ||||||||||
11,818,727 | 5,199,389 | |||||||||||||
Current
|
2,153,572 | 540,237 | ||||||||||||
Non-current
|
9,665,155 | 4,659,152 |
|
(a)
|
Loans and borrowings are guaranteed by promissory notes and endorsements of the Company and its jointly-controlled entities and controlling shareholders, besides other guarantees, such as: (i) credit rights originating from energy contracts (BNDES), (ii) CTN and land mortgages (PESA), and (iii) underlying assets (Property, plant and equipment and Intangible assets) being financed (FINAME);
|
|
(b)
|
Financial charges as at March 31, 2013, except where otherwise indicated.
|
2013
|
2012
|
|||||||
13 to 24 months
|
1,134,074 | 747,146 | ||||||
25 to 36 months
|
2,213,311 | 1,085,917 | ||||||
37 to 48 months
|
1,020,983 | 1,295,155 | ||||||
49 to 60 months
|
1,552,936 | 591,534 | ||||||
61 to 72 months
|
531,527 | 179,137 | ||||||
73 to 84 months
|
899,563 | 300,921 | ||||||
85 to 96 months
|
1,056,083 | 220,893 | ||||||
Thereafter
|
1,256,678 | 238,449 | ||||||
9,665,155 | 4,659,152 |
Carrying amount
|
Fair value
|
|||||||||||||||
2013
|
2012
|
2013
|
2012
|
|||||||||||||
Senior / perpetual notes
|
3,651,634 | 1,621,349 | 3,873,074 | 1,741,841 | ||||||||||||
Loans and borrowings
|
8,167,093 | 3,578,040 | 8,190,942 | 3,578,040 | ||||||||||||
Total
|
11,818,727 | 5,199,389 | 12,064,016 | 5,319,881 |
2013
|
2012
|
|||||||
Brazilian Real
|
6,562,260 | 2,291,573 | ||||||
UK pound
|
167,021 | - | ||||||
US Dollar
|
5,089,447 | 2,907,816 | ||||||
Total
|
11,818,727 | 5,199,389 |
20.
|
Income tax and other taxes payable
|
2013
|
2012
|
|||||||
Income tax payable
|
37,984 | 11,973 | ||||||
37,984 | 11,973 | |||||||
Other taxes
|
||||||||
ICMS - State VAT
|
100,756 | 66,601 | ||||||
IPI
|
876 | 4,631 | ||||||
INSS
|
16,508 | 13,029 | ||||||
PIS
|
6,476 | 5,003 | ||||||
COFINS
|
28,196 | 21,294 | ||||||
IOF
|
2,001 | - | ||||||
Recovery program - REFIS
|
1,009,723 | 1,287,941 | ||||||
Other
|
13,839 | 33,871 | ||||||
1,178,375 | 1,432,370 | |||||||
1,216,359 | 1,444,343 | |||||||
Current
|
246,049 | 241,719 | ||||||
Non-current
|
970,310 | 1,202,624 |
2013
|
2012
|
|||||||
13 to 24 months
|
64,178 | 99,083 | ||||||
25 to 36 months
|
63,708 | 97,707 | ||||||
37 to 48 months
|
63,274 | 97,254 | ||||||
49 to 60 months
|
62,633 | 96,909 | ||||||
61 to 72 months
|
61,469 | 96,270 | ||||||
73 to 84 months
|
61,469 | 95,229 | ||||||
85 to 96 months
|
61,470 | 95,229 | ||||||
Thereafter
|
532,109 | 524,943 | ||||||
970,310 | 1,202,624 |
21.
|
Income tax and social contribution
|
|
(a)
|
Reconciliation of income and social contribution tax expenses
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Profit before tax
|
959,992 | 3,244,456 | 1,182,165 | |||||||||
Income tax and social contribution at
|
||||||||||||
nominal rate (34%)
|
(326,397 | ) | (1,103,115 | ) | (401,936 | ) | ||||||
Adjustments to determine the effective rate
|
||||||||||||
Tax effect of legal merger of JV entities
|
120,554 | - | - | |||||||||
Equity pick-up
|
20,012 | 11,311 | 8,563 | |||||||||
Permanent differences (donations, gifts, etc.)
|
(7,543 | ) | (12,341 | ) | (9,131 | ) | ||||||
Stock options
|
(4,521 | ) | (3,672 | ) | - | |||||||
Interest on capital
|
10,981 | - | - | |||||||||
Tax loss
|
(59,798 | ) | 12,505 | - | ||||||||
Non-taxable income (loss) from overseas
|
||||||||||||
companies
|
(33,014 | ) | (136,397 | ) | (3,056 | ) | ||||||
Exchange variation on the subsidiary´s equity
|
44,584 | 86,342 | - | |||||||||
Different tax regime for entities taxed
|
||||||||||||
on presumed profits (Note 3.16)
|
40,841 | - | - | |||||||||
Exchange variations on the paid up capital
|
38,832 | 48,708 | - | |||||||||
Other
|
14,258 | (19,713 | ) | (8,948 | ) | |||||||
Income tax and social contribution
|
||||||||||||
expense (current and deferred)
|
(141,211 | ) | (1,116,372 | ) | (414,508 | ) | ||||||
Effective rate - %
|
14.71 | 34.41 | 35.06 |
|
(b)
|
Deferred income tax on assets and liabilities
|
2013
|
2012
|
|||||||||||||||||||
Basis
|
IRPJ
|
CSLL
|
Total
|
Total
|
||||||||||||||||
Tax losses
|
||||||||||||||||||||
Tax losses
|
1,904,323 | 476,081 | - | 476,081 | 551,326 | |||||||||||||||
Tax losses of social contribution
|
1,955,384 | - | 175,985 | 175,985 | 197,863 | |||||||||||||||
Temporary differences
|
||||||||||||||||||||
Foreign currency receivables and payables
|
164,348 | 41,093 | 14,793 | 55,886 | (37,387 | ) | ||||||||||||||
Amortized goodwill
|
1,762,308 | 440,576 | 158,608 | 599,184 | (230,523 | ) | ||||||||||||||
Provision for judicial demands
|
690,186 | 172,547 | 62,117 | 234,664 | 247,359 | |||||||||||||||
Allowance for doubtful accounts
|
342,849 | 85,712 | 30,856 | 116,568 | 96,757 | |||||||||||||||
Profit sharing
|
306,335 | 76,584 | 27,570 | 104,154 | 23,565 | |||||||||||||||
Unrealized profits
|
(127,940 | ) | (31,985 | ) | (11,515 | ) | (43,500 | ) | (2,340 | ) | ||||||||||
Other temporary differences
|
269,778 | 67,445 | 24,280 | 91,725 | 133,625 | |||||||||||||||
Effects of the Joint Venture
|
(3,657,582 | ) | (914,396 | ) | (329,182 | ) | (1,243,578 | ) | (1,272,118 | ) | ||||||||||
Investment property
|
(2,478,117 | ) | (49,562 | ) | (26,764 | ) | (76,326 | ) | (124,515 | ) | ||||||||||
Business combination - Property, plant and equipment
|
(2,589,876 | ) | (647,469 | ) | (233,089 | ) | (880,558 | ) | (988,055 | ) | ||||||||||
Business combination - Intangible assets
|
(4,806,829 | ) | (1,201,707 | ) | (432,615 | ) | (1,634,322 | ) | (297,463 | ) | ||||||||||
Business combination - Other
|
(79,014 | ) | (19,754 | ) | (7,111 | ) | (26,865 | ) | (10,672 | ) | ||||||||||
IFRS adjustments
|
(520,815 | ) | (130,204 | ) | (46,873 | ) | (177,077 | ) | (187,828 | ) | ||||||||||
Total
|
(1,635,039 | ) | (592,940 | ) | (2,227,979 | ) | (1,900,406 | ) | ||||||||||||
|
||||||||||||||||||||
Deferred income tax - asset
|
388,732 | 543,024 | ||||||||||||||||||
Deferred income tax - liabilities
|
(2,616,711 | ) | (2,443,430 | ) | ||||||||||||||||
|
||||||||||||||||||||
Total of deferred taxes
|
(2,227,979 | ) | (1,900,406 | ) |
|
(c)
|
Recovery of income tax and social contribution
|
2013
|
||||
No later than 1 year
|
76,348 | |||
Later than 1 year and no later than 5 years
|
273,319 | |||
Later than 5 years
|
302,399 | |||
652,066 |
|
(d)
|
Changes in deferred income taxes, net
|
2013
|
2012
|
|||||||
Deferred tax at beginning of the year
|
(1,900,406 | ) | (795,632 | ) | ||||
Income
|
32,873 | (982,458 | ) | |||||
Other comprehensive imcome
|
103,211 | (68,887 | ) | |||||
Tax effect of unrealized gain on investment in JV
|
120,554 | 75,846 | ||||||
Disposal of tax losses
|
(12,430 | ) | 140,049 | |||||
Business combination
|
(499,287 | ) | (22,546 | ) | ||||
Effect of the formation of Joint Ventures
|
- | (232,091 | ) | |||||
Gain on disposal of discontinued operation
|
(73,738 | ) | (12,956 | ) | ||||
Other
|
1,244 | (1,731 | ) | |||||
Deferred tax at end of the year
|
(2,227,979 | ) | (1,900,406 | ) |
22.
|
Provision for judicial demands
|
2013
|
2012
|
|||||||
Tax
|
651,996 | 620,835 | ||||||
Civil and environmental
|
242,606 | 168,952 | ||||||
Labor
|
250,746 | 261,890 | ||||||
1,145,348 | 1,051,677 |
2013
|
2012
|
|||||||
Tax
|
434,922 | 411,619 | ||||||
Civil and environmental
|
63,217 | 65,142 | ||||||
Labor
|
46,756 | 32,474 | ||||||
544,895 | 509,235 |
Tax
|
Civil
|
Labor
|
Total
|
|||||||||||||
At March 31, 2012
|
620,835 | 168,952 | 261,890 | 1,051,677 | ||||||||||||
Provision
|
31,123 | 70,097 | 110,922 | 212,142 | ||||||||||||
Write-offs
|
(29,540 | ) | (57,475 | ) | (138,558 | ) | (225,573 | ) | ||||||||
Business combination
|
3,815 | 40,776 | 11,400 | 55,991 | ||||||||||||
Monetary variation
|
25,763 | 20,256 | 5,092 | 51,111 | ||||||||||||
At March 31, 2013
|
651,996 | 242,606 | 250,746 | 1,145,348 |
|
(a)
|
Tax
|
Description
|
2013
|
2012
|
||||||
Compensation with FINSOCIAL (ii)
|
203,334 | 195,421 | ||||||
ICMS credits (iv)
|
113,165 | 97,552 | ||||||
CIDE (iii)
|
93,841 | 93,841 | ||||||
IPC - 89 (i)
|
83,536 | 82,173 | ||||||
INSS (v)
|
66,379 | 53,167 | ||||||
PIS and COFINS
|
17,860 | 17,445 | ||||||
IPI
|
10,764 | 15,970 | ||||||
IRPJ and CSLL
|
2,194 | 2,110 | ||||||
Other
|
60,923 | 63,156 | ||||||
|
||||||||
Total
|
651,996 | 620,835 |
|
(i)
|
In 1993, Cosan Lubrificantes e Especialidades ("Cosan CLE") filed a suit to challenge the balance sheet restatement index (“IPC”) established by the Federal Government in 1989, considering that this index did not reflect the actual rate of inflation. The use of this index led the Company to overpay income and social contribution taxes. Cosan CLE obtained a favorable preliminary court ruling that allowed it to recalculate its financial position, using indices that better measured the inflation over the period. In doing so the Company adjusted the amounts of income and social contribution taxes payable and offset the overpayments for both taxes in subsequent years until 1997. Despite the favorable court rulings, the tax authorities issued a notice of infringement to the Company challenging all of the offset taxes whose values had been updated accrued. No judicial deposits were made for these processes.
|
|
(ii)
|
During the period from October 2003 to November 2006 the subsidiary Cosan CL offset FINSOCIAL against several other federal taxes, based on a final court decision in September 2003 following a decision that challenged the constitutionality of the FINSOCIAL. No judicial deposits were made for these processes.
|
|
(iii)
|
Prior to the formation of the Joint Venture, Raízen Combustíveis, formerly Shell Brasil Ltda, recorded CIDE on services provided from operations. This contingency will be reimbursed by Shell if any payment is required, and an equivalent amount is recorded as related parties. There are judicial deposits related to these processes, amounting to R$ 170,835.
|
|
(iv)
|
The provision for ICMS credits is made up of: (a) the tax assessment received, in which, despite the defense filed at the administrative and judicial levels, the legal counsel of the Company understand it is more likely than not that a loss will occur, (b) the recovery of credits and financial charges relating to issues on which the Company's management has a differing view from the tax authorities. There are judicial deposits related to these processes, amounting to R$ 8,392.
|
|
(v)
|
Contingencies related to INSS essentially involve: (i) The question of the legality and constitutionality of Instruction MPS / SRP No. 03 of 2005, which restricted the constitutional immunity of contributions on revenue from export exclusively to direct sales, going to tax exports made through commercial exporters or trading companies. (ii) Requirement of contribution under SENAR operations of direct and indirect export, in which the IRS understands that there is no constitutional right to immunity and (iii) Requirement of gathering pension contribution on resale of goods in the domestic market and to third parties, which do not enter on count of the calculation basis of social contribution, which focuses only on gross revenue arising from the establishment and effective production of goods not acquired.
|
|
(b)
|
Civil and environmental
|
|
(a)
|
Tax claims
|
Description
|
2013
|
2012
|
||||||
Withholding income taxes (i)
|
212,074 | 204,249 | ||||||
ICMS - State VAT (ii)
|
1,918,247 | 1,705,220 | ||||||
IPI credit - NT (iii)
|
383,280 | 378,735 | ||||||
Income taxes (vii)
|
553,828 | 532,131 | ||||||
Compensation with IPI - IN 67/98 (iv)
|
197,786 | 188,479 | ||||||
INSS - social security and other (v)
|
491,794 | 83,875 | ||||||
PIS and COFINS (vi)
|
821,361 | 529,257 | ||||||
Other
|
549,927 | 493,471 | ||||||
|
||||||||
Total
|
5,128,297 | 4,115,417 |
|
(i)
|
Tax assessment - withholding income tax
|
|
(ii)
|
ICMS – State VAT
|
|
(iii)
|
IPI – Federal VAT
|
|
(iv)
|
Offsettings against IPI credits – IN 67/98
|
|
(v)
|
INSS
|
|
(vi)
|
PIS and COFINS
|
|
(vii)
|
Income taxes – Assessment notice
|
|
(b)
|
Civil and labor
|
2013
|
2012
|
|||||||
Civil
|
1,216,704 | 869,954 | ||||||
Labor
|
575,155 | 1,200,573 | ||||||
1,791,859 | 2,070,527 |
23.
|
Equity
|
|
(a)
|
Share capital
|
Class A and /
|
Class B1
|
|||||||||||||||
Shareholders
|
or BDRs
|
%
|
shares
|
%
|
||||||||||||
Queluz Holding Limited
|
6,358,175 | 3.65 | 66,321,766 | 68.85 | ||||||||||||
Usina Costa Pinto S.A. Açúcar e Alcool
|
- | - | 30,010,278 | 31.15 | ||||||||||||
Gávea funds
|
30,657,762 | 17.58 | - | - | ||||||||||||
Other
|
137,339,404 | 78.77 | - | - | ||||||||||||
Total
|
174,355,341 | 100.00 | 96,332,044 | 100.00 |
|
(b)
|
Repurchase shares
|
|
(c)
|
Other comprehensive income
|
March 31,
|
Comprehensive
|
March 31,
|
Comprehensive
|
March 31,
|
||||||||||||||||
2011
|
income
|
2012
|
income
|
2013
|
||||||||||||||||
Foreign currency translation differences
|
(203,454 | ) | 20,724 | (182,730 | ) | 2,585 | (180,145 | ) | ||||||||||||
Gain (loss) on cash flow hedge
|
(143,297 | ) | 157,412 | 14,115 | 35,695 | 49,810 | ||||||||||||||
Revaluation of investment property reclassified from property, plant and equipment
|
- | - | - | 190,735 | 190,735 | |||||||||||||||
Defined benefit plan actuarial losses
|
22,570 | (23,689 | ) | (1,119 | ) | (34,487 | ) | (35,606 | ) | |||||||||||
Changes in value of available for sale financial assets from securities
|
- | - | - | 7,131 | 7,131 | |||||||||||||||
Total
|
(324,181 | ) | 154,447 | (169,734 | ) | 201,659 | 31,925 | |||||||||||||
Attributable to
|
||||||||||||||||||||
Owners of the company
|
(275,619 | ) | 99,119 | (176,500 | ) | 117,594 | (58,906 | ) | ||||||||||||
Non-controlling interests
|
(48,562 | ) | 55,328 | 6,766 | 84,065 | 90,831 |
24.
|
Commitments
|
|
(a)
|
Sales
|
2013 (i)
|
2012 (i)
|
|||||||
2013
|
- | 2,518,640 | ||||||
2014
|
2,947,595 | 1,714,101 | ||||||
2015
|
514,000 | - | ||||||
2016
|
514,000 | - | ||||||
Total
|
3,975,595 | 4,232,741 |
|
(i)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
2013 (i)
|
2012 (i)
|
|||||||
2013
|
- | 454,837 | ||||||
2014
|
808,850 | 145,871 | ||||||
2015
|
175,000 | - | ||||||
Total
|
983,850 | 600,708 |
|
(i)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
Electric power
|
Steam
|
|||||||||||||||
2013 (i)
|
2012 (i)
|
2013 (i)
|
2012 (i)
|
|||||||||||||
2013
|
- | 1,978,555 | - | 170,000 | ||||||||||||
2014
|
1,944,924 | 1,980,554 | 170,000 | 170,000 | ||||||||||||
2015
|
1,677,904 | 1,993,054 | - | - | ||||||||||||
2016
|
1,669,144 | 1,984,294 | - | - | ||||||||||||
2017
|
1,669,144 | 1,984,294 | - | - | ||||||||||||
After 2017
|
13,243,863 | 15,250,163 | - | - | ||||||||||||
Total
|
20,204,979 | 25,170,914 | 170,000 | 340,000 |
|
(i)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
|
(b)
|
Purchases
|
2013 (i)
|
2012 (i)
|
|||||||
2013
|
- | 24,746,804 | ||||||
2014
|
26,410,050 | 22,096,456 | ||||||
2015
|
24,205,206 | 19,623,954 | ||||||
2016
|
20,982,447 | 16,462,984 | ||||||
After 2016
|
123,972,354 | 113,137,913 | ||||||
Total
|
195,570,057 | 196,068,111 |
|
(i)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
2013 (i)
|
||||
2014
|
7,815,953 | |||
2015
|
616,618 | |||
Total
|
8,432,571 |
|
(i)
|
Represents 100% of the commitments of Raízen Combustíveis, of which the Company proportionately consolidates only 50%.
|
2013
|
||||
2014
|
1,596,112 | |||
2015
|
1,532,112 | |||
Total
|
3,128,224 |
2013
|
2012
|
|||||||
2013
|
- | 489,794 | ||||||
2014
|
206,760 | 44,000 | ||||||
2015
|
- | 2,000 | ||||||
Total
|
206,760 | 535,794 |
|
(c)
|
Lease agreements
|
2013 (i)
|
2012 (i)
|
|||||||
Minimum installment
|
210,368 | 214,949 | ||||||
Variable installment
|
298,641 | 280,930 | ||||||
Total
|
509,009 | 495,879 |
|
(i)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
2013 (i)
|
2012 (i)
|
|||||||
No later than 1 year
|
560,629 | 553,815 | ||||||
Later than 1 year and no later than 5 years
|
1,778,019 | 1,673,249 | ||||||
Later than 5 years
|
1,420,455 | 1,676,005 | ||||||
Total
|
3,759,103 | 3,903,069 |
|
(i)
|
Represents 100% of the commitments of Raízen Energia, of which the Company proportionately consolidates only 50%.
|
2013
|
||||
2014
|
39,464 | |||
2015
|
52,173 | |||
2016
|
57,787 | |||
2017
|
62,811 | |||
Total
|
212,235 |
2013
|
2012
|
|||||||
Less than 1 year
|
2,888 | 1,860 | ||||||
Later than 1 year and no later than 5 years
|
566 | 526 | ||||||
Total
|
3,454 | 2,386 |
2013
|
||||
2013
|
48,380 | |||
2014
|
64,944 | |||
2015
|
65,057 | |||
2016
|
65,171 | |||
2017
|
65,171 | |||
Total
|
308,723 |
|
(d)
|
Warehousing services
|
2013 (i)
|
||||
2014
|
891,410 | |||
2015
|
430,600 | |||
2016
|
288,000 | |||
2017
|
232,000 | |||
Total
|
1,842,010 |
|
(i)
|
Represents 100% of the commitments of Raízen Combustíveis, of which the Company proportionately consolidates only 50%.
|
|
(e)
|
Commitments for the acquisition of assets and regulatory targets
|
25.
|
Earnings per share
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Numerator
|
||||||||||||
Profit from continuing operations
|
||||||||||||
Basic
|
344.880 | 1,141,314 | 470,906 | |||||||||
Diluted
|
311.219 | 1,141,314 | 470,906 | |||||||||
Profit from discontinued operations
|
86,549 | 40,028 | - | |||||||||
Denominator
|
||||||||||||
Weighted average number of capital shares
|
264,842,445 | 268,678,062 | 270,687,385 | |||||||||
Income basic earnings per capital share
|
||||||||||||
Continued operations
|
R$ | 1.30 | R$ | 4.25 | R$ | 1.74 | ||||||
Discontinued operations
|
R$ | 0.33 | R$ | 0.15 | R$ | - | ||||||
Income diluted earnings per capital share
|
||||||||||||
Continued operations
|
R$ | 1.18 | R$ | 4.25 | R$ | 1.74 | ||||||
Discontinued operations
|
R$ | 0.33 | R$ | 0.15 | R$ | - |
26.
|
Gain on the de-recognition of subsidiaries operations to form the Joint Ventures (Raízen Energia and Raízen Combustíveis)
|
27.
|
Gross sales
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Taxable gross revenue from sales of
|
||||||||||||
products and services
|
32,140,077 | 24,966,534 | 19,783,250 | |||||||||
Construction contracts
|
230,038 | - | - | |||||||||
Indirect taxes and deductions
|
(2,353,627 | ) | (1,576,084 | ) | (1,719,770 | ) | ||||||
Net revenue
|
30,016,488 | 23,390,450 | 18,063,480 |
28.
|
Expenses by nature
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Raw materials and consumables used
|
(4,389,999 | ) | (4,119,066 | ) | (3,657,462 | ) | ||||||
Resale fuels
|
(20,031,999 | ) | (15,060,815 | ) | (10,084,103 | ) | ||||||
Employee benefit expense
|
(1,180,807 | ) | (548,189 | ) | (905,510 | ) | ||||||
Commercial expenses
|
(237,238 | ) | (452,620 | ) | (179,283 | ) | ||||||
Transportation expenses
|
(754,368 | ) | (401,339 | ) | (545,212 | ) | ||||||
Depreciation and amortization expense
|
(1,544,087 | ) | (1,141,595 | ) | (742,307 | ) | ||||||
Other expenses
|
(683,539 | ) | (850,344 | ) | (607,652 | ) | ||||||
(28,822,038 | ) | (22,573,968 | ) | (16,721,529 | ) |
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Cost of sales
|
(26,684,266 | ) | (20,887,643 | ) | (15,150,079 | ) | ||||||
Selling
|
(1,292,312 | ) | (1,052,310 | ) | (1,026,000 | ) | ||||||
General and administrative
|
(845,460 | ) | (634,015 | ) | (545,450 | ) | ||||||
(28,822,038 | ) | (22,573,968 | ) | (16,721,529 | ) |
29.
|
Financial results
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Financial Expense
|
||||||||||||
Interest expense
|
(639,784 | ) | (544,876 | ) | (586,887 | ) | ||||||
Monetary variation
|
(39,216 | ) | (15,624 | ) | (81,341 | ) | ||||||
Bank fees
|
(102,330 | ) | (25,490 | ) | (9,138 | ) | ||||||
(781,330 | ) | (585,990 | ) | (677,366 | ) | |||||||
Financial Income
|
||||||||||||
Interest income
|
109,310 | 49,794 | 63,791 | |||||||||
Monetary variation
|
20,800 | 26,312 | 34,018 | |||||||||
Investment income
|
132,573 | 127,320 | 90,345 | |||||||||
Other
|
204 | 372 | 603 | |||||||||
262,887 | 203,798 | 188,757 | ||||||||||
Foreign exchange variation, net (i)
|
(146,789 | ) | (93,888 | ) | 282,706 | |||||||
(146,789 | ) | (93,888 | ) | 282,706 | ||||||||
Derivatives gains (losses) (ii)
|
||||||||||||
Commodities derivatives
|
3,391 | 18,472 | 6,524 | |||||||||
Exchange rate and interest derivatives
|
(23,017 | ) | (711 | ) | 34,984 | |||||||
Warrants in associates
|
65,230 | (22,141 | ) | 13,248 | ||||||||
45,604 | (4,380 | ) | 54,756 | |||||||||
(619,628 | ) | (480,460 | ) | (151,147 | ) | |||||||
Finance expense
|
(951,136 | ) | (702,730 | ) | (677,366 | ) | ||||||
Finance income
|
331,508 | 222,270 | 526,219 |
|
(i)
|
Includes gains (losses) on foreign exchange rates relating to assets and liabilities denominated in foreign currency.
|
|
(ii)
|
Includes realized results and unrealized results on operations in the futures market, options, swaps and NDFs, in addition to the effects from non-designated instruments and from the ineffective portion of hedge accounting.
|
30.
|
Other, net
|
2012
|
||||||||||||
2013
|
(Restated)
|
2011
|
||||||||||
Provision for judicial demands
|
(49,281 | ) | (80,835 | ) | (23,828 | ) | ||||||
Income on disposal of non-current assets
|
83,454 | 84,395 | 37,191 | |||||||||
Revenue from the sale of scrap and waste
|
4,348 | 2,827 | 6,950 | |||||||||
Rental and leasing income
|
81,105 | 57,197 | 4,111 | |||||||||
Changes in the fair value of investment property
|
138,776 | - | - | |||||||||
Royalty revenue, other services and other
|
67,908 | 58,852 | (58,252 | ) | ||||||||
326,310 | 122,436 | (33,828 | ) |
31.
|
Non-current assets held for sale and discontinued operations
|
32.
|
Financial instruments
|
·
|
Price risk;
|
·
|
Foreign exchange rates;
|
·
|
Interest rates;
|
·
|
Credit risk;
|
·
|
Liquidity risk.
|
Notional
|
Fair value
|
|||||||||||||||||||||||
2013
|
2012
|
2013
|
2012
|
P&L (i)
|
Equity
|
|||||||||||||||||||
Raízen Derivatives
|
||||||||||||||||||||||||
Price Risk
|
||||||||||||||||||||||||
Commodities derivatives
|
||||||||||||||||||||||||
Future agreements
|
1,066,650 | 1,194,225 | 139,015 | 24,377 | 67,625 | 71,390 | ||||||||||||||||||
Options agreements
|
(8,571 | ) | 8,954 | 99 | 782 | (167 | ) | - | ||||||||||||||||
139,114 | 25,159 | 67,458 | 71,390 | |||||||||||||||||||||
Exchange rate risk
|
||||||||||||||||||||||||
Exchange rate derivatives
|
||||||||||||||||||||||||
Future agreements
|
182,161 | 490,949 | (652 | ) | 1,682 | (652 | ) | - | ||||||||||||||||
Term agreements
|
12,790 | 258,690 | 249 | 1,773 | 249 | - | ||||||||||||||||||
Lock exchange
|
(315,715 | ) | 256,381 | (3,490 | ) | 3,403 | (3,498 | ) | - | |||||||||||||||
(3,893 | ) | 6,858 | (3,901 | ) | - | |||||||||||||||||||
Interest rate risk
|
||||||||||||||||||||||||
Interest derivatives
|
||||||||||||||||||||||||
Interest hedge
|
819,511 | 318,868 | (5,403 | ) | (1,495 | ) | (5,403 | ) | - | |||||||||||||||
(5,403 | ) | (1,495 | ) | (5,403 | ) | - | ||||||||||||||||||
Total Raízen
|
129,818 | 30,522 | 58,154 | 71,390 | ||||||||||||||||||||
Cosan Consolidated (50% Raízen)
|
64,909 | 15,261 | 29,077 | 35,695 | ||||||||||||||||||||
COMGÁS derivatives
|
||||||||||||||||||||||||
Exchange rate risk
|
||||||||||||||||||||||||
Exchange rate derivatives
|
||||||||||||||||||||||||
Swap agreements
|
537,000 | - | 134,901 | - | 134,901 | - | ||||||||||||||||||
134,901 | - | 134,901 | - | |||||||||||||||||||||
Company and subsidiaries derivatives
|
||||||||||||||||||||||||
Exchange rate risk
|
||||||||||||||||||||||||
Exchange rate derivatives
|
||||||||||||||||||||||||
Term agreements
|
(252,635 | ) | 325,029 | (11,194 | ) | (5,282 | ) | (11,194 | ) | - | ||||||||||||||
Swap agreements
|
- | - | 115 | - | 115 | - | ||||||||||||||||||
(11,079 | ) | (5,282 | ) | (11,079 | ) | - | ||||||||||||||||||
Interest rate risk
|
||||||||||||||||||||||||
Interest derivatives
|
||||||||||||||||||||||||
Swap agreements
|
- | - | 12,026 | - | 12,026 | - | ||||||||||||||||||
12,026 | - | 12,026 | - | |||||||||||||||||||||
Total financial instruments contracted by
|
||||||||||||||||||||||||
Company - except Joint Venture
|
135,848 | (5,282 | ) | 135,848 | - | |||||||||||||||||||
Total Cosan (including 50% Raízen if applicable)
|
200,757 | 9,979 | 164,925 | 35,695 | ||||||||||||||||||||
Assets
|
228,919 | 19,590 | ||||||||||||||||||||||
Liabilities
|
(28,163 | ) | (9,611 | ) |
|
(i)
|
Values from the income statement calculated for the year ended March 31, 2013 only to outstanding derivative that date.
|
Price Risk - commodities derivatives opened as at March 31, 2013
|
||||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Maturity date
|
Notional (unit)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Financial instruments contracted by Raizen Energia
|
||||||||||||||||
Composition of balance of derivative financial instruments designated in hedge accounting
|
||||||||||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
May-13
|
288,151 | T | 235,872 | 9,948 | ||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Jul-13
|
420,339 | T | 389,275 | 58,964 | ||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Oct-13
|
491,513 | T | 460,292 | 64,231 | ||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Mar-14
|
24,995 | T | 24,394 | 3,254 | ||||||||
Future
|
Sold
|
ICE
|
Sugar#5
|
May-13
|
3,000 | T | 3,021 | (20 | ) | |||||||
Future
|
Sold
|
ICE
|
Sugar#5
|
Aug-13
|
4,300 | T | 4,347 | 68 | ||||||||
Sub-total of sugar futures sold
|
1,232,298 | T | 1,117,201 | 136,445 | ||||||||||||
Composition of balance of derivative financial instruments non-designated in hedge accounting
|
||||||||||||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
May-13
|
(17,882 | ) T | (15,078 | ) | (1,058 | ) | ||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
Jul-13
|
(9,246 | ) T | (7,633 | ) | (367 | ) | ||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
Oct-13
|
(1,930 | ) T | (1,679 | ) | (123 | ) | ||||||
Future
|
Purchased
|
NYBOT
|
Sugar#11
|
Mar-14
|
(3,556 | ) T | (3,114 | ) | (106 | ) | ||||||
Sub-total of sugar future pruchased
|
(32,614 | ) T | (27,504 | ) | (1,654 | ) | ||||||||||
Call
|
Purchased
|
NYBOT
|
Sugar#11
|
Jul-13
|
(10,160 | ) T | (8,571 | ) | 99 | |||||||
Sub-total of sugar purchased
|
(10,160 | ) T | (8,571 | ) | 99 | |||||||||||
Sub-total of Sugar
|
1,189,524 | T | 1,081,126 | 134,890 | ||||||||||||
Future
|
Sold
|
BM&FBovespa
|
Ethanol Hidrated
|
Mar-13
|
28,380 m³ | 33,710 | (71 | ) | ||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Mar-13
|
- | - | 1,194 | |||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Apr-13
|
- | - | 98 | |||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Mar-13
|
- | - | 467 | |||||||||
Future
|
Sold
|
PlattsChicagoEthanolAsianSwap
|
Ethanol
|
Apr-13
|
- | - | (323 | ) | ||||||||
Future
|
Sold
|
BM&F Ethanol Euro Swap
|
Ethanol
|
Jun-13
|
- | - | (13 | ) | ||||||||
Future
|
Sold
|
BM&F Ethanol Euro Swap
|
Ethanol
|
Jul-13
|
- | - | (29 | ) | ||||||||
Future
|
Sold
|
BM&F Ethanol Euro Swap
|
Ethanol
|
Aug-13
|
- | - | (23 | ) | ||||||||
Future
|
Sold
|
CHGOETHNL
|
Ethanol
|
May-13
|
- | - | (167 | ) | ||||||||
Future
|
Sold
|
CHGOETHNL
|
Ethanol
|
Jun-13
|
- | - | (113 | ) | ||||||||
Sub-total of etanol futures sold
|
28,380 m³ | 33,710 | 1,020 |
Price Risk - commodities derivatives opened as at March 31, 2013
|
||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Maturity date
|
Notional (unit)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||
Future
|
Purchased
|
BM&FBovespa
|
Ethanol Hidrated
|
Mar-13
|
(28,380) m³
|
(34,838)
|
60
|
|||||||
Future
|
Purchased
|
BM&FBovespa
|
Ethanol Hidrated
|
Jun-13
|
(9,000) m³
|
(10,277)
|
-
|
|||||||
Future
|
Purchased
|
BM&FBovespa
|
Ethanol Hidrated
|
Jul-13
|
(6,300) m³
|
(7,120)
|
-
|
|||||||
Future
|
Purchased
|
BM&FBovespa
|
Ethanol Hidrated
|
Aug-13
|
(3,990) m³
|
(4,522)
|
-
|
|||||||
Future
|
Purchased
|
Platts Chicago Ethanol Asian Swap
|
Ethanol
|
Apr-13
|
-
|
-
|
9
|
|||||||
Future
|
Purchased
|
Platts Chicago Ethanol Asian Swap
|
Ethanol
|
Aug-13
|
-
|
-
|
532
|
|||||||
Future
|
Purchased
|
Platts Chicago Ethanol Asian Swap
|
Ethanol
|
Apr-13
|
-
|
-
|
(601)
|
|||||||
Future
|
Purchased
|
Platts Chicago Ethanol Asian Swap
|
Ethanol
|
Jul-13
|
-
|
-
|
222
|
|||||||
Future
|
Purchased
|
CHGOETHNL
|
Ethanol
|
Oct-13
|
-
|
-
|
35
|
|||||||
Future
|
Purchased
|
CHGOETHNL
|
Ethanol
|
Dec-13
|
-
|
-
|
66
|
|||||||
Future
|
Purchased
|
CHGOETHNL
|
Ethanol
|
Nov-13
|
-
|
-
|
55
|
|||||||
Sub-total of etanol futures purchased
|
(47,670) m³
|
(56,757)
|
378
|
|||||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Apr-13
|
-
|
-
|
865
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Aug-13
|
-
|
-
|
531
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Jul-13
|
-
|
-
|
363
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Jun-13
|
-
|
-
|
188
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Mar-13
|
-
|
-
|
49
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
May-13
|
-
|
-
|
267
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Nov-13
|
-
|
-
|
369
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Oct-13
|
-
|
-
|
276
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Sep-13
|
-
|
-
|
101
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Mar-13
|
-
|
-
|
(265)
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
May-13
|
-
|
-
|
(1,213)
|
||||||||
Phisical Fixed
|
Sold
|
Ethanol
|
Apr-13
|
-
|
-
|
1,052
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Aug-13
|
-
|
-
|
45
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Jun-13
|
-
|
-
|
376
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Nov-13
|
-
|
-
|
51
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Apr-13
|
-
|
-
|
(54)
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Mar-13
|
-
|
-
|
(33)
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
May-13
|
-
|
-
|
(80)
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Nov-13
|
-
|
-
|
(29)
|
||||||||
Phisical Fixed
|
Purchased
|
Ethanol
|
Oct-13
|
-
|
-
|
(33)
|
||||||||
Sub-total Ethanol Phisical fixed
|
-
|
-
|
2,826
|
|||||||||||
Sub-total Ethanol
|
(19,290) m³
|
(23,047)
|
4,224
|
|||||||||||
At March 31, 2013
|
1,058,079
|
139,114
|
||||||||||||
At March 31, 2012
|
1,203,178
|
25,159
|
Foreign exchange risk: foreign exchange derivatives outstanding at March 31, 2013
|
||||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Maturity date
|
Notional (US$)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Financial instruments contracted by Raízen
|
||||||||||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
Apr-13
|
452,500 | 896,879 | (3,282 | ) | ||||||||
Future
|
Sold
|
NYBOT
|
Sugar#11
|
May-13
|
150,750 | 304,643 | (1,545 | ) | ||||||||
Future
|
Sold
|
ICE
|
Sugar#5
|
Jul-13
|
265,000 | 532,405 | (2,847 | ) | ||||||||
Sub-total of future sold
|
868,250 | 1,733,927 | (7,674 | ) | ||||||||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
Apr-13
|
(297,750 | ) | (590,424 | ) | 1,701 | |||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
Apr-13
|
(154,750 | ) | (308,934 | ) | 1,581 | |||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
May-13
|
(2,500 | ) | (5,056 | ) | 23 | |||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
Jul-13
|
(13,000 | ) | (26,228 | ) | 140 | |||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
Oct-13
|
(13,000 | ) | (26,611 | ) | 143 | |||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
Jan-14
|
(13,000 | ) | (27,040 | ) | 148 | |||||||
Future
|
Purchased
|
BM&FBovespa
|
Commercial USD
|
Jul-14
|
(265,000 | ) | (567,473 | ) | 3,286 | |||||||
Sub-total of future purchased
|
(759,000 | ) | (1,551,766 | ) | 7,022 | |||||||||||
Term
|
Sold
|
OTC/Cetip
|
NDF
|
Jul-13
|
||||||||||||
Term
|
Purchased
|
OTC/Cetip
|
NDF
|
Jul-14
|
100,000 | 213,850 | 3,823 | |||||||||
Sub-total of Term
|
- | 12,790 | 249 | |||||||||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Aug-13
|
(50,000 | ) | (101,340 | ) | 143 | |||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Sep-13
|
(100,000 | ) | (202,550 | ) | (3,465 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Apr-13
|
1,088 | 2,191 | (47 | ) | ||||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Apr-13
|
428 | 862 | 8 | |||||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
May-13
|
(212 | ) | (427 | ) | - | |||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
May-13
|
368 | 741 | (9 | ) | ||||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Jun-13
|
(212 | ) | (427 | ) | - | |||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Jul-13
|
(3,318 | ) | (6,681 | ) | (99 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Jul-13
|
(212 | ) | (427 | ) | (1 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Aug-13
|
(212 | ) | (428 | ) | (1 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Sep-13
|
(212 | ) | (428 | ) | (1 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Oct-13
|
(213 | ) | (428 | ) | (1 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Oct-13
|
(2,952 | ) | (5,945 | ) | (16 | ) | ||||||
Exchange Lock
|
Sold
|
OTC
|
Exchange Lock
|
Nov-13
|
(213 | ) | (428 | ) | (1 | ) | ||||||
Sub-total of Exchange lock
|
(155,872 | ) | (315,715 | ) | (3,490 | ) | ||||||||||
At March 31, 2013
|
(120,764 | ) | (3,893 | ) | ||||||||||||
At March 31, 2012
|
1,006,020 | 6,858 |
Foreign exchange risk: foreign exchange derivatives outstanding at March 31, 2013
|
|||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Notional (US$)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Financial instruments contracted by COMGÁS
|
|||||||||||||||
Composition of balance of derivative financial instruments designated in hedge accounting:
|
|||||||||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
84,000 | 169,927 | 25,379 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
40,000 | 80,395 | 12,630 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
71,000 | 143,785 | 24,814 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
72,000 | 145,870 | 27,821 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
19,000 | 37,327 | 4,378 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
31,000 | 62,931 | 12,834 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
45,000 | 90,621 | 18,507 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
50,000 | 100,690 | 12,701 | |||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
75,000 | 151,035 | (3,477 | ) | ||||||||
Swap/cash flow
|
Purchased
|
OTC/Cetip
|
Cross curr Swap
|
50,000 | 100,690 | (686 | ) | ||||||||
Sub-total Swap purchased
|
537,000 | 1,083,271 | 134,901 | ||||||||||||
At March 31, 2013
|
1,083,271 | 134,901 | |||||||||||||
At March 31, 2012
|
- | - |
Price Risk - commodities derivatives opened as at March 31, 2013
|
||||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Maturity date
|
Notional (US$)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Financial instruments contracted by Company - except Joint Venture
|
||||||||||||||||
Composition of balances of derivative financial instruments non-designated in hedge accounting:
|
||||||||||||||||
Term
|
Purchased
|
OTC
|
NDF
|
May-13
|
6,188 | 12,739 | (192 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
May-13
|
4,197 | 7,696 | 809 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Aug-13
|
6,188 | 12,997 | (296 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Aug-13
|
4,197 | 7,859 | 738 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Nov-13
|
6,188 | 13,256 | (358 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Nov-13
|
4,197 | 8,032 | 684 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Feb-14
|
6,188 | 13,521 | (423 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Feb-14
|
4,197 | 8,190 | 646 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
May-14
|
6,188 | 13,743 | (446 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
May-14
|
4,197 | 8,340 | 617 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Aug-14
|
6,188 | 14,002 | (458 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Aug-14
|
4,197 | 8,507 | 599 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Nov-14
|
6,188 | 14,261 | (473 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Nov-14
|
4,197 | 8,666 | 587 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Feb-15
|
6,188 | 14,497 | (468 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Feb-15
|
4,197 | 8,813 | 586 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
May-15
|
6,188 | 14,726 | (473 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
May-15
|
4,197 | 8,942 | 590 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Aug-15
|
6,188 | 15,003 | (517 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Aug-15
|
4,197 | 9,089 | 580 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Nov-15
|
6,188 | 15,254 | (538 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Nov-15
|
4,197 | 9,232 | 575 | |||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Jun-13
|
- | 302,070 | (4,102 | ) | ||||||||
Term
|
Purchased
|
OTC
|
NDF
|
Jul-13
|
- | 704,830 | (9,461 | ) | ||||||||
Sub-total Term
|
114,235 | 1,254,265 | (11,194 | ) |
Price Risk - commodities derivatives opened as at March 31, 2013
|
||||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Agreement
|
Maturity date
|
Notional (US$)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Swap
|
Purchased
|
OTC
|
Swap
|
May-13
|
- | (433,122 | ) | (6,413 | ) | |||||||
Swap
|
Purchased
|
OTC
|
Swap
|
May-13
|
- | (285,158 | ) | 38 | ||||||||
Swap
|
Sold
|
OTC
|
Swap
|
Apr-13
|
- | 285,158 | 2 | |||||||||
Swap
|
Sold
|
OTC
|
Swap
|
Apr-13
|
- | 433,122 | 6,488 | |||||||||
Sub-total Swap
|
- | - | 115 | |||||||||||||
At March 31, 2013
|
1,254,265 | (11,079 | ) | |||||||||||||
At March 31, 2012
|
325,029 | 5,282 |
2013
|
2012
|
|||||||||||||||
R$ |
US$
|
R$ |
US$
|
|||||||||||||
Cash and cash equivalents
|
5,319 | 2,641 | 6,349 | 3,484 | ||||||||||||
Restricted cash
|
41,246 | 20,482 | 45,976 | 25,232 | ||||||||||||
Trade receivables
|
105,940 | 52,607 | 164,681 | 90,380 | ||||||||||||
Related parties (Shell)
|
- | - | 436,362 | 239,483 | ||||||||||||
Loans and borrowings
|
(5,089,447 | ) | (2,527,285 | ) | (2,915,388 | ) | (1,600,015 | ) | ||||||||
Foreign exchange exposure, net
|
(4,936,942 | ) | (2,451,555 | ) | (2,262,020 | ) | (1,241,436 | ) |
Expected period to affect P&L
|
|||||||||||||||||
Derivative
|
Market
|
Risk
|
2012/2013 | 2013/2014 |
Total
|
||||||||||||
Future
|
OTC / NYBOT
|
#11 | - | 75,471 | 75,471 | ||||||||||||
- | 75,471 | 75,471 | |||||||||||||||
(-) Deferred income tax
|
- | (25,661 | ) | (25,661 | ) | ||||||||||||
Effect on Raízen's equity at 2013
|
- | 49,810 | 49,810 | ||||||||||||||
Effect on Raízen's equity at 2012
|
14,114 |
At March 31, 2012
|
14,114 | |||
Gains/(losses) of cash flow hedges for the period:
|
||||
Commodities futures and swap contracts
|
188,398 | |||
Forward agreements (NDFs) exchange
|
2,701 | |||
Reclassification adjustments for losses/gains
|
||||
included in income (sales revenue/financial result)
|
(137,014 | ) | ||
Total effect on equity adjustments resulting
|
||||
from hedge cash flow (before deferred income tax)
|
54,085 | |||
Effect of deferred income tax in equity adjustment
|
(18,389 | ) | ||
Net effect of the tax period
|
35,696 | |||
At March 31, 2013
|
49,810 |
Price Risk: derivatives of interests open as at March 31, 2013
|
|||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Maturity date
|
Notional (US$)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Interest rate Swap
|
Libor 3M / fixed
|
OTC
|
Dec-15
|
231,000 | 466,274 | (367 | ) | ||||||||
Interest rate Swap
|
Libor 3M / fixed
|
OTC
|
Jan-16
|
175,000 | 353,238 | (5,036 | ) | ||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Aug-13
|
16,717 | 33,665 | (1,097 | ) | ||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Feb-14
|
16,994 | 34,223 | (883 | ) | ||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Apr-14
|
92,949 | 187,181 | (4,550 | ) | ||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
May-14
|
89,578 | 180,392 | (4,219 | ) | ||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Jun-14
|
88,932 | 179,090 | (4,016 | ) | ||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Jul-14
|
88,193 | 177,602 | (3,809 | ) | ||||||||
Sub-total assets interest rate Swap
|
799,363 | 1,611,665 | (23,977 | ) | |||||||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Aug-13
|
(16,717 | ) | (33,665 | ) | 1,097 | |||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Feb-14
|
(16,994 | ) | (34,223 | ) | 883 | |||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Apr-14
|
(92,949 | ) | (187,181 | ) | 4,550 | |||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
May-14
|
(89,578 | ) | (180,392 | ) | 4,219 | |||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Jun-14
|
(88,932 | ) | (179,090 | ) | 4,016 | |||||||
Interest rate Swap Intercompany
|
USD fixed / CDI
|
BM&FBovespa
|
Jul-14
|
(88,193 | ) | (177,603 | ) | 3,809 | |||||||
Sub-total liabilities interest rate Swap
|
(393,363 | ) | (792,154 | ) | 18,574 | ||||||||||
At March 31, 2013
|
406,000 | 819,511 | (5,403 | ) | |||||||||||
At March 31, 2012
|
175,000 | 318,868 | (1,495 | ) |
Price Risk: derivatives of interests open as at March 31, 2013
|
|||||||||||||||
Derivatives
|
Purchased / Sold
|
Market
|
Maturity date
|
Notional (US$)
|
Notional (R$ thousand)
|
Fair Value (R$ thousand)
|
|||||||||
Interest rate Swap
|
Fixed / Libor
|
OTC
|
May-13
|
175,000 | 352,415 | 7,173 | |||||||||
Interest rate Swap
|
Fixed / Libor
|
OTC
|
May-13
|
368,500 | 742,085 | (1,845 | ) | ||||||||
Sub-total assets interest rate Swap
|
543,500 | 1,094,500 | 5,328 | ||||||||||||
Interest rate Swap Intercompany
|
Libor / fixed
|
OTC
|
May-13
|
(175,000 | ) | (352,415 | ) | (3,231 | ) | ||||||
Interest rate Swap Intercompany
|
Libor / fixed
|
OTC
|
May-13
|
(368,500 | ) | (742,085 | ) | 9,929 | |||||||
Sub-total liabilities interest rate Swap
|
(543,500 | ) | (1,094,500 | ) | 6,698 | ||||||||||
At March 31, 2013
|
- | - | 12,026 |
|
(i)
|
Guarantee margins
|
Bank deposits
|
295,676 | |||
Financial investments and derivatives
|
2,402,908 | |||
AAA
|
1,435,439 | |||
AA
|
153,420 | |||
A |
129,527
|
|||
BBB |
684,522
|
|||
At March 31, 2013
|
2,698,584
|
2013
|
2012
|
|||||||||||||||||||||||
Until 1 year
|
1 - 2 years
|
3 - 5 years
|
More than 5 years
|
Total
|
Total
|
|||||||||||||||||||
Loans and borrowings
|
2,153,572 | 1,315,825 | 6,054,825 | 4,402,130 | 13,926,352 | 7,578,347 | ||||||||||||||||||
Derivative financial instruments
|
28,163 | - | - | - | 28,163 | 9,611 | ||||||||||||||||||
Trade payables
|
1,387,651 | - | - | - | 1,387,651 | 606,029 | ||||||||||||||||||
REFIS
|
246,049 | 64,178 | 189,615 | 716,517 | 1,216,359 | 1,444,343 | ||||||||||||||||||
Total
|
3,815,435 | 1,380,003 | 6,244,440 | 5,118,647 | 16,558,525 | 9,638,330 |
|
(ii)
|
Fair value hierarchy
|
|
(1)
|
Level 1 - quoted prices in an active market for identical assets and liabilities;
|
|
(2)
|
Level 2 - other techniques for which all of the data having a significant effect on the fair value recorded are observable, directly or indirectly;
|
|
(3)
|
Level 3 - techniques that use data having a significant effect on the fair value recorded that are not based on observable market data.
|
Assets and liabilities measured at fair value
|
Level 1
|
Level 2
|
Total
|
|||||||||
At March 31, 2013
|
||||||||||||
Derivative financial assets
|
74,563 | 154,357 | 228,920 | |||||||||
Derivative financial liabilities
|
(5,332 | ) | (22,831 | ) | (28,163 | ) | ||||||
Securities
|
- | 39,046 | 39,046 | |||||||||
Total
|
69,231 | 170,572 | 239,803 | |||||||||
At March 31, 2012
|
||||||||||||
Warrants Radar
|
- | 140,820 | 140,820 | |||||||||
Derivative financial assets
|
17,002 | 2,588 | 19,590 | |||||||||
Derivative financial liabilities
|
(8,863 | ) | (748 | ) | (9,611 | ) | ||||||
Total
|
8,139 | 142,660 | 150,799 |
|
(i)
|
Assumptions for sensitivity analysis
|
|
(ii)
|
Sensitivity analysis
|
Impacts on P&L (i) | |||||||||||||
Risk factor
|
Probable scenario
|
Variation scenario (25%)
|
Variation scenario (50%)
|
||||||||||
Price Risk
|
|||||||||||||
Goods derivatives
|
|||||||||||||
Future contracts
|
|||||||||||||
Selling agreements
|
Increase in the sugar price
|
68,223 | (122,594 | ) | (245,189 | ) | |||||||
Purchasing agreements
|
Decrease in the sugar price
|
(827 | ) | (3,231 | ) | (6,462 | ) | ||||||
Selling agreements
|
Decrease in the Heating Oil
|
- | - | - | |||||||||
Purchasing agreements
|
Increase in the Hydrated Ethanol Price
|
(35 | ) | (4,452 | ) | (8,904 | ) | ||||||
Selling agreements
|
Decrease in the Hydrated Ethanol Price
|
30 | (7,897 | ) | (15,795 | ) | |||||||
Purchasing agreements
|
Increase in the Hydrated Ethanol Price
|
3,405 | 16,301 | 17,986 | |||||||||
Option agreements
|
|||||||||||||
Selling Calls
|
Decrease in the sugar price
|
50 | (50 | ) | (50 | ) | |||||||
Exchange rate risks
|
|||||||||||||
Exchange rate derivatives
|
|||||||||||||
Future contracts
|
|||||||||||||
Selling agreements
|
Increase in exchange rate R$/US$
|
(87,444 | ) | (369,285 | ) | (639,974 | ) | ||||||
Purchasing agreements
|
Decrease in exchange rate R$/US$
|
4,181 | (197,979 | ) | (236,933 | ) | |||||||
Term contracts
|
|||||||||||||
Selling agreements
|
Increase in exchange rate R$/US$
|
(1,787 | ) | (25,142 | ) | (50,285 | ) | ||||||
Purchasing agreements
|
Decrease in exchange rate R$/US$
|
1,912 | (24,713 | ) | (49,427 | ) | |||||||
Lock exchange
|
|||||||||||||
Selling agreements
|
Increase in exchange rate R$/US$
|
(1,661 | ) | (37,323 | ) | (74,646 | ) | ||||||
Selling agreements
|
Increase in exchange rate R$/US$
|
(84 | ) | (472 | ) | (1,005 | ) | ||||||
Interest rate risk
|
|||||||||||||
Interest rate derivatives
|
|||||||||||||
Swap contracts
|
Decrease in LIBOR Curve
|
(2,876 | ) | (23,075 | ) | (29,386 | ) | ||||||
(16,913 | ) | (799,912 | ) | (1,340,070 | ) |
|
·
|
The exposure to foreign currency fluctuations are absorbed by the asset (liabilities), which are passed on to customers periodically in rate reviews.
|
Exchange rate simulations (R$/US$)
|
||||||||||||||||||||||||
Scenario
|
||||||||||||||||||||||||
2013
|
Probable
|
25 | % | 50 | % | -25 | % | -50 | % | |||||||||||||||
At March 31, 2013
|
2.0138 | 2.0138 | 2.5173 | 3.0207 | 1.5104 | 1.0069 |
2013
|
||||||||||||||||||||||||
Balance
|
Probable
|
25 | % | 50 | % | -25 | % | -50 | % | |||||||||||||||
Trade receivables
|
105,940 | 105,940 | 26,485 | 52,970 | (26,485 | ) | (52,970 | ) | ||||||||||||||||
Bonds and Debentures
|
3,651,634 | 3,651,634 | 912,909 | 1,825,817 | (912,909 | ) | (1,825,817 | ) | ||||||||||||||||
Loans and borrowings
|
1,604,834 | 1,604,834 | 401,209 | 802,417 | (401,209 | ) | (802,417 | ) |
2013
|
||||||||||||||||||||||||
Balance
|
Probable
|
25 | % | 50 | % | -25 | % | -50 | % | |||||||||||||||
Financial investments
|
2,197,503 | 2,197,503 | 283,251 | 511,949 | (72,846 | ) | (94,370 | ) | ||||||||||||||||
Loans and borrowings (Note 19)
|
6,562,260 | 6,562,260 | 143,267 | 189,412 | (143,239 | ) | (189,302 | ) | ||||||||||||||||
Profit of the year
|
426,518 | 701,361 | (216,084 | ) | (283,672 | ) |
Financial assets designated as at fair value throughprofit or loss
|
Available-for-sale
|
Derivative designated
|
Loans and receivables
|
Total
|
||||||||||||||||
Assets
|
||||||||||||||||||||
Cash and cash equivalents
|
- | - | - | 2,493,179 | 2,493,179 | |||||||||||||||
Trade receivables
|
- | - | - | 1,764,945 | 1,764,945 | |||||||||||||||
Derivative financial instruments
|
94,018 | - | 134,901 | - | 228,919 | |||||||||||||||
Securities
|
- | 39,046 | - | 66,810 | 105,856 | |||||||||||||||
Judicial deposits
|
- | - | - | 544,895 | 544,895 | |||||||||||||||
Other financial assets
|
- | - | - | 686,436 | 686,436 | |||||||||||||||
94,018 | 39,046 | 134,901 | 5,556,265 | 5,824,230 |
Financial liabilities designated as at fair value through profit or loss
|
Other
financial
liabilities
|
Total
|
||||||||||
Liabilities
|
||||||||||||
Loans and borrowings
|
- | 11,818,727 | 11,818,727 | |||||||||
Derivative financial instruments
|
28,163 | - | 28,163 | |||||||||
Trade payables
|
- | 1,387,651 | 1,387,651 | |||||||||
Dividends payable
|
- | 67,364 | 67,364 | |||||||||
28,163 | 13,273,742 | 13,301,905 |
33.
|
Pensions and other post-employment benefit plans
|
2013
|
2012
|
|||||||
Futura
|
78,405 | 34,725 | ||||||
Futura II
|
2,795 | 2,587 | ||||||
COMGÁS
|
294,859 | - | ||||||
Total
|
376,059 | 37,312 |
2013
|
2012
|
|||||||
Present value of actuarial obligation at
|
||||||||
beginning of year
|
(362,715 | ) | (383,823 | ) | ||||
Actuarial interest rate
|
(34,208 | ) | (38,345 | ) | ||||
Current service cost
|
- | (455 | ) | |||||
Benefits paid
|
24,883 | 27,845 | ||||||
Settlement / curtailment
|
5,412 | 54,779 | ||||||
Actuarial loss on obligation at beginning of year
|
(36,222 | ) | (22,716 | ) | ||||
Present value of actuarial obligation
|
||||||||
end of the year
|
(402,850 | ) | (362,715 | ) | ||||
Fair value of plan assets at beginning of the year
|
327,990 | 359,443 | ||||||
Expected return on plan assets
|
36,281 | 39,000 | ||||||
Contributions received by the fund
|
5,239 | 3,282 | ||||||
Benefits Paid
|
(24,883 | ) | (27,846 | ) | ||||
Effect of migration to defined contribution - Settlement
|
(4,634 | ) | (32,226 | ) | ||||
Loss in fair value of assets
|
(15,548 | ) | (13,663 | ) | ||||
Fair value of plan assets at year-end
|
324,445 | 327,990 | ||||||
Present value of liabilities in excess fair value of
|
||||||||
assets – actuarial liability
|
(78,405 | ) | (34,725 | ) |
2013
|
2012
|
2011
|
||||||||||
Expense recognized in profit or loss
|
||||||||||||
Current service cost
|
- | (455 | ) | (4,445 | ) | |||||||
Interest on obligation
|
(34,208 | ) | (38,345 | ) | (35,107 | ) | ||||||
Expected return on plan assets
|
36,281 | 39,000 | 35,918 | |||||||||
Early settlement plan
|
778 | - | - | |||||||||
2,851 | 200 | (3,634 | ) |
2013
|
2012
|
|||||||
Amount accumulated at April 1
|
(1,389 | ) | 22,621 | |||||
Unrealized loss
|
(51,770 | ) | (36,379 | ) | ||||
Deferred income tax
|
17,602 | 12,369 | ||||||
Amount accumulated at March 31st
|
(35,557 | ) | (1,389 | ) |
2013
|
2012
|
|||||||||||||||
Amount
|
%
|
Amount
|
%
|
|||||||||||||
Fixed income bonds
|
232,108 | 71.54 | 245,993 | 75.00 | ||||||||||||
Variable-income securities
|
92,337 | 28.46 | 81,997 | 25.00 | ||||||||||||
Total
|
324,445 | 100.00 | 327,990 | 100.00 |
2013
|
2012
|
|||
Defined benefit plan
|
||||
Actuarial valuation method
|
Projected unit credit
|
Projected unit credit
|
||
Mortality table
|
AT 83 segregated by sex, decreased by 10%
|
AT 83 segregated by sex, decreased by 10%
|
||
Discount rate for actuarial liability
|
Interest: 10.09% p.a.
|
Interest: 9.68% p.a.
|
||
Expected rate of return on plan assets
|
Interest: 11.30% p.a.
|
Interest: 11.30% p.a.
|
||
Salary growth rate
|
N/A
|
N/A
|
||
Increase rate of estimated benefits
|
0.00% p.a. + inflation: 5.50% p.a.
|
0.00% p.a. + inflation: 4.20% p.a.
|
2013
|
||||
Discount rate
|
9.46 | |||
Inflation
|
5.50 | |||
Expected return on assets
|
9.46 | |||
Future salary increases
|
8.66 | |||
Increase in pension plans
|
5.50 | |||
Morbidity (aging factor)
|
3.00 | |||
Mortality (by gender)
|
AT-2000
|
|||
Disabled Associates Mortality
|
IAPB-1957
|
|||
Disability entry (modified)
|
UP-1984
|
|||
Turnover
|
0,3/(Length of
|
|||
service + 1)
|
2013
|
||||
Present value of actuarial obligations
|
301,514 | |||
Fair value of the plan assets
|
(6,655 | ) | ||
Actuarial liabilities
|
294,859 |
2013
|
||||
Business combination - COMGÁS
|
288,593 | |||
Expenses
|
16,924 | |||
Employer contributions
|
(11,361 | ) | ||
Actuarial losses recognized in the
|
||||
other comprehensive income
|
703 | |||
Actuarial liabilities
|
294,859 |
34.
|
Share-Based Payments
|
Options
|
Options
|
|||||||
granted on
|
granted on
|
|||||||
August 18, 2012
|
August 18, 2012
|
|||||||
Tranche A
|
Tranche B
|
|||||||
Grant grantprice -R$
|
22.80 | 22.80 | ||||||
Expected life (in years)
|
1 to 5
|
1 to 10
|
||||||
Interest rate
|
12.39 | 12.39 | ||||||
Expected Volatility
|
31.44 | 30.32 | ||||||
Weighted average fair value at grant date - R$
|
6.80 | 8.15 |
Total amount option
|
Exercise price weighted average
|
|||||||
At March 31, 2012
|
9,825,000 | 22.80 | ||||||
Share options exercised
|
(723,000 | ) | (23.18 | ) | ||||
At March 31, 2013
|
9,102,000 | 23.74 |
Article 1 Definitions And Incorporation By Reference
|
1
|
|
Section 1.01
|
Definitions.
|
1
|
Section 1.02
|
Rules of Construction.
|
22
|
Section 1.03
|
Table of Contents; Headings.
|
23
|
Section 1.04
|
Form of Documents Delivered to Trustee.
|
23
|
Article 2 The Notes
|
23
|
|
Section 2.01
|
Form, Dating and Denominations; Legends.
|
23
|
Section 2.02
|
Execution and Authentication; Additional Notes.
|
24
|
Section 2.03
|
Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust.
|
26
|
Section 2.04
|
Replacement Notes.
|
27
|
Section 2.05
|
Outstanding Notes.
|
27
|
Section 2.06
|
Temporary Notes.
|
28
|
Section 2.07
|
Cancellation.
|
28
|
Section 2.08
|
CUSIP and ISIN Numbers.
|
29
|
Section 2.09
|
Registration, Transfer and Exchange.
|
29
|
Section 2.10
|
Restrictions on Transfer and Exchange.
|
31
|
Section 2.11
|
Open Market Purchases.
|
33
|
Article 3 Additional Amounts; Redemption
|
33
|
|
Section 3.01
|
Additional Amounts.
|
33
|
Section 3.02
|
Redemption for Taxation Reasons.
|
35
|
Section 3.03
|
Method, Effect and Notice of Redemption.
|
35
|
Section 3.04
|
Notice of Redemption by the Company.
|
36
|
Section 3.05
|
Additional Redemption Procedures.
|
36
|
Section 3.06
|
Deposit of Redemption Price.
|
37
|
Section 3.07
|
Effect of Notice of Redemption.
|
37
|
Section 3.08
|
Offer to Purchase.
|
37
|
Article 4 Covenants
|
40
|
|
Section 4.01
|
Payment of Principal and Interest under the Notes.
|
40
|
Section 4.02
|
Maintenance of Office or Agency.
|
41
|
Section 4.03
|
Maintenance of Corporate Existence.
|
41
|
Section 4.04
|
Payment of Taxes and other Claims.
|
42
|
Section 4.05
|
Compliance with Applicable Laws.
|
42
|
Section 4.06
|
Maintenance of Properties
|
42
|
Section 4.07
|
Limitation on Debt and Disqualified Stock.
|
42
|
Section 4.08
|
Limitation on Restricted Payments.
|
46
|
Section 4.09
|
Limitation on Transfer of the Company’s Voting Stock.
|
48
|
Section 4.10
|
Limitation on Liens.
|
48
|
Section 4.11
|
Limitation on Sale and Leaseback Transactions.
|
49
|
Section 4.12
|
Limitation on Dividend and other Payment Restrictions Affecting Restricted Subsidiaries
|
49
|
Section 4.13
|
Repurchase of Notes Upon a Change of Control.
|
51
|
Section 4.14
|
Limitation on Asset Sales.
|
51
|
Section 4.15
|
Limitation on Transactions with Shareholders and Affiliates.
|
52
|
Section 4.16
|
Maintenance of Books and Records.
|
54
|
Section 4.17
|
Reports to the Trustee
|
54
|
Section 4.18
|
Ranking
|
55
|
Section 4.19
|
Limitations and Restrictions on the Company
|
55
|
Section 4.21
|
Paying Agent and Transfer Agent
|
55
|
Section 4.22
|
Covenant Suspension.
|
56
|
Article 5 Consolidation, Merger or Transfer of Assets
|
57
|
|
Section 5.01
|
Consolidation, Merger or Sale of Assets by the Guarantor; No Lease of All or Substantially All Assets.
|
57
|
Article 6 Default and Remedies
|
58
|
|
Section 6.01
|
Events of Default.
|
58
|
Section 6.02
|
Acceleration.
|
59
|
Section 6.03
|
Notices; Other Remedies
|
60
|
Section 6.04
|
Waiver of Past Defaults.
|
60
|
Section 6.05
|
Control by Majority.
|
60
|
Section 6.06
|
Limitation on Suits.
|
61
|
Section 6.07
|
Rights of Holders to Receive Payment.
|
61
|
Section 6.08
|
Collection Suit by Trustee.
|
61
|
Section 6.09
|
Trustee May File Proofs of Claim.
|
61
|
Section 6.10
|
Priorities.
|
62
|
Section 6.11
|
Restoration of Rights and Remedies.
|
62
|
Section 6.12
|
Undertaking for Costs.
|
62
|
Section 6.13
|
Rights and Remedies Cumulative.
|
63
|
Section 6.14
|
Delay or Omission Not Waiver.
|
63
|
Section 6.15
|
Waiver of Stay, Extension or Usury Laws.
|
63
|
Article 7 The Trustee
|
63
|
|
Section 7.01
|
General
|
63
|
Section 7.02
|
Certain Rights of Trustee
|
64
|
Section 7.03
|
Individual Rights of Trustee.
|
66
|
Section 7.04
|
Trustee’s Disclaimer.
|
66
|
Section 7.05
|
Notice of Default.
|
66
|
Section 7.06
|
Compensation And Indemnity.
|
67
|
Section 7.07
|
Replacement of Trustee.
|
68
|
Section 7.08
|
Successor Trustee by Merger.
|
69
|
Section 7.09
|
Eligibility.
|
69
|
Section 7.10
|
Money Held in Trust.
|
69
|
Section 7.11
|
Paying and Transfer Agent
|
69
|
Article 8 Defeasance and Discharge
|
72
|
|
Section 8.01
|
Discharge of Company’s and Guarantor’ Obligations.
|
72
|
Section 8.02
|
Legal Defeasance.
|
73
|
Section 8.03
|
Covenant Defeasance.
|
74
|
Section 8.04
|
Application of Trust Money.
|
74
|
Section 8.05
|
Repayment to Company.
|
75
|
Section 8.06
|
Reinstatement.
|
75
|
Article 9 Amendments, Supplements and Waivers
|
75
|
|
Section 9.01
|
Amendments Without Consent of Holders.
|
75
|
Section 9.02
|
Amendments With Consent of Holders.
|
76
|
Section 9.03
|
Effect of Consent.
|
77
|
Section 9.04
|
Trustee’s Rights and Obligations.
|
77
|
Article 10 Guarantee
|
78
|
Section 10.01
|
The Note Guarantee.
|
78
|
Section 10.02
|
Guarantee Unconditional.
|
78
|
Section 10.03
|
Discharge; Reinstatement.
|
79
|
Section 10.04
|
Waiver by the Guarantor.
|
79
|
Section 10.05
|
Subrogation.
|
79
|
Section 10.06
|
Stay of Acceleration.
|
79
|
Section 10.07
|
Limitation on Amount of Guarantee.
|
79
|
Section 10.08
|
Execution and Delivery of Guarantee.
|
79
|
Section 10.09
|
Release of Guarantee.
|
80
|
Article 11 Miscellaneous
|
80
|
|
Section 11.01
|
Holder Communications; Holder Actions
|
80
|
Section 11.02
|
Notices.
|
81
|
Section 11.03
|
Certificate and Opinion as to Conditions Precedent.
|
83
|
Section 11.04
|
Statements Required in Certificate or Opinion.
|
83
|
Section 11.05
|
Payment Date Other Than a Business Day.
|
83
|
Section 11.06
|
Governing Law.
|
83
|
Section 11.07
|
Submission to Jurisdiction; Agent for Service; Waiver of Immunities
|
83
|
Section 11.08
|
Judgment Currency
|
84
|
Section 11.09
|
No Adverse Interpretation of Other Agreements.
|
85
|
Section 11.10
|
Successors.
|
85
|
Section 11.11
|
Duplicate Originals.
|
85
|
Section 11.12
|
Separability.
|
85
|
Section 11.13
|
Table of Contents and Headings.
|
85
|
Section 11.14
|
No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders.
|
85
|
EXHIBIT A
|
Form of Note
|
EXHIBIT B
|
Form of Supplemental Indenture
|
EXHIBIT C
|
Restricted Legend
|
EXHIBIT D
|
DTC Legend
|
EXHIBIT E
|
Regulation S Certificate
|
EXHIBIT F
|
Rule 144A Certificate
|
|
(A)
|
any Asset Sale, the proceeds of such Asset Sale in the form of cash or Cash Equivalents (including (i) payments in respect of deferred payment obligations to the extent corresponding to, principal, but not interest, when received in the form of cash, and (ii) proceeds from the conversion of other consideration received when converted to cash), net of:
|
|
(1)
|
brokerage commissions and other fees and expenses related to such Asset Sale, including fees and expenses of counsel, accountants and investment bankers;
|
|
(2)
|
provisions for taxes as a result of such Asset Sale taking into account the consolidated results of operations of the Guarantor and its Subsidiaries;
|
|
(3)
|
payments required to be made to repay Debt (other than revolving credit borrowings) outstanding at the time of such Asset Sale that is secured by a Lien on the property or assets sold; and
|
|
(4)
|
appropriate amounts to be provided as a reserve against liabilities associated with such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and indemnification obligations associated with such Asset Sale, with any subsequent reduction of the reserve other than by payments made and charged against the reserved amount to be deemed a receipt of cash.
|
|
(B)
|
any Option Exercise, the proceeds from such Option Exercise in the form of cash or Cash Equivalents (including (i) payments in respect of deferred payment obligations to the extent corresponding to principal, but not interest, when received in the form of cash, and (ii) proceeds from the conversion of other consideration received when converted to cash), net of:
|
|
(1)
|
fees and expenses related to such Option Exercise, including fees and expenses of counsel, auditors and investment bankers;
|
|
(2)
|
provisions for taxes as a result of such Option Exercise taking into account the consolidated results of operations of the Guarantor and its Subsidiaries;
|
|
(3)
|
payments required to be made to repay Debt (other than revolving credit borrowings) outstanding at the time of such Option Exercise that is secured by a Lien on the property or assets sold or conveyed; and
|
|
(4)
|
appropriate amounts to be provided as a reserve against liabilities associated with such Option Exercise, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and indemnification obligations associated with such Option Exercise, with any subsequent reduction of the reserve other than by payments made and charged against the reserved amount to be deemed a receipt of cash.
|
A
|
B
|
C
|
U.S. Global Note
|
U.S. Global Note
|
(1)
|
U.S. Global Note
|
Offshore Global Note
|
(2)
|
U.S. Global Note
|
Certificated Note
|
(3)
|
Offshore Global Note
|
U.S. Global Note
|
(4)
|
Offshore Global Note
|
Offshore Global Note
|
(1)
|
Offshore Global Note
|
Certificated Note
|
(1)
|
Certificated Note
|
U.S. Global Note
|
(4)
|
Certificated Note
|
Offshore Global Note
|
(2)
|
Certificated Note
|
Certificated Note
|
(3)
|
COSAN LUXEMBOURG S.A.
as Issuer
|
|||
|
By:
|
/s/ Marcelo Eduardo Martins | |
Name: Marcelo Eduardo Martins | |||
Title: Director |
|
By:
|
/s/ Richard Brekelmans | |
Name: Richard Brekelmans | |||
Title: Director B |
COSAN S.A. INDÚSTRIA E COMÉRCIO
as Guarantor
|
|||
|
By:
|
/s/ Marcos Marinho Lutz | |
Name: Marcos Marinho Lutz | |||
Title: Officer |
|
By:
|
/s/ Marcelo de Souza Scarcela Portela | |
Name: Marcelo de Souza Scarcela Portela | |||
Title: Officer |
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee, Registrar, Principal Paying Agent, Transfer Agent and Calculation Agent
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
/s/ Wanda Camacho | |
Name: Wanda Camacho
|
|||
Title: Vice President
|
|
By:
|
/s/ Rodney Gaughan | |
Name: Rodney Gaughan
|
|||
Title: Vice President |
DEUTSCHE BANK LUXEMBOURG S.A.
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
/s/ Wanda Camacho | |
Name: Wanda Camacho, Vice President
|
|||
Title: Attorney in Fact
|
|
By:
|
/s/ Rodney Gaughan | |
Name: Rodney Gaughan, Vice President
|
|||
Title: Attorney in Fact
|
No. [R-1 / S-1]
|
R$[●]
|
Date:
|
COSAN LUXEMBOURG S.A.
|
||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee, Registrar, Principal Paying Agent, Transfer Agent and Calculation Agent
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
COSAN S.A. INDÚSTRIA E COMÉRCIO
as Guarantor
|
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
Insert Taxpayer Identification No.
|
Please print or typewrite name and address including zip code of assignee
|
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
|
Seller
|
||
By
|
||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
|
1
|
Include in Rule 144A Note.
|
2
|
Include in Regulation S Note.
|
By
|
||
To be executed by an executive officer
|
3
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
4
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
Date of transfer or Exchange
|
Amount of decrease in principal amount of this Global Note
|
Amount of increase in principal amount of this Global Note
|
Principal amount of this Global Note following such decrease (or increase)
|
Signature of authorized officer of Trustee
|
5
|
For Global Notes
|
SUPPLEMENTAL INDENTURE
|
|||
dated as of __________, ____
among
COSAN LUXEMBOURG S.A.,
as Issuer,
the [ADDITIONAL GUARANTOR(S)] Party Hereto,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee, Registrar, Paying Agent, Transfer Agent and Calculation Agent,
and
DEUTSCHE BANK LUXEMBOURG S.A.,
as Luxembourg Paying Agent
|
9.500%
Senior Notes due
March 14, 2018
|
COSAN LUXEMBOURG S.A.
as Issuer
|
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
[ADDITIONAL GUARANTOR]
as Guarantor |
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee, Registrar, Principal Paying Agent, Transfer Agent and Calculation Agent
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
DEUTSCHE BANK LUXEMBOURG S.A.
|
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
Re:
|
COSAN LUXEMBOURG S.A., as Issuer public limited liability company (société anonyme) organized under the laws of Luxembourg, having its registered office at 13-15 Avenue de la Liberté, L-1931 Luxembourg, Grand Duchy of Luxembourg registered with the Luxembourg Register of Commerce and Companies under number B 175.646
9.500% Senior Notes due March 14, 2018 (the “Notes”) Issued under the Indenture (the “Indenture”) dated as of March 14, 2013 relating to the Notes
|
o A.
|
This Certificate relates to our proposed transfer of R$____ principal amount of Notes issued under the Indenture. We hereby certify as follows:
|
|
1.
|
The offer and sale of the Notes was not and will not be made to a person in the United States (unless such person is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3)) and such offer and sale was not and will not be specifically targeted at an identifiable group of U.S. citizens abroad.
|
|
2.
|
Unless the circumstances described in the parenthetical in paragraph 1 above are applicable, either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States;
|
|
3.
|
Neither we, any of our affiliates, nor any person acting on our or their behalf, has made any directed selling efforts in the United States with respect to the Notes;
|
|
4.
|
The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
|
|
5.
|
If we are an officer or director of the Company or an Initial Purchaser (as defined in the Indenture), we certify that the proposed transfer is being made in accordance with the provisions of Rule 904(b) of Regulation S.
|
o B.
|
This Certificate relates to our proposed exchange of R$____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. We hereby certify as follows:
|
|
1.
|
At the time the offer and sale of the Notes was made to us, either (i) we were not in the United States or (ii) we were excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by us for which we were acting was excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3); and we were not a member of an identifiable group of U.S. citizens abroad;
|
|
2.
|
Unless the circumstances described in paragraph 1(ii) above are applicable, either (a) at the time our buy order was originated, we were outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and we did not pre-arrange the transaction in the United States.; and
|
|
3.
|
The proposed exchange of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.
|
Very truly yours,
|
|||
[NAME OF SELLER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]
|
|||
|
By:
|
||
Name: | |||
Title: |
7
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
Re:
|
COSAN LUXEMBOURG S.A., as Issuer
9.500% Senior Notes due March 14, 2018 (the “Notes”) Issued under the Indenture (the “Indenture”) dated as of March 14, 2013 relating to the Notes
|
o A.
|
Our proposed purchase of R$____ principal amount of Notes issued under the Indenture.
|
o B.
|
Our proposed exchange of R$____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.
|
Very truly yours,
|
|||
[NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]
|
|||
|
By:
|
||
Name: | |||
Title: |
8
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
Article 1 Definitions And Incorporation By Reference
|
1
|
|
Section 1.01
|
Definitions.
|
1
|
Section 1.02
|
Rules of Construction.
|
22
|
Section 1.03
|
Table of Contents; Headings.
|
23
|
Section 1.04
|
Form of Documents Delivered to Trustee.
|
23
|
Article 2 The Notes
|
23
|
|
Section 2.01
|
Form, Dating and Denominations; Legends.
|
23
|
Section 2.02
|
Execution and Authentication; Additional Notes.
|
24
|
Section 2.03
|
Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust.
|
25
|
Section 2.04
|
Replacement Notes.
|
27
|
Section 2.05
|
Outstanding Notes.
|
27
|
Section 2.06
|
Temporary Notes.
|
28
|
Section 2.07
|
Cancellation.
|
28
|
Section 2.08
|
CUSIP and ISIN Numbers.
|
28
|
Section 2.09
|
Registration, Transfer and Exchange.
|
28
|
Section 2.10
|
Restrictions on Transfer and Exchange.
|
31
|
Section 2.11
|
Open Market Purchases.
|
32
|
Article 3 Additional Amounts; Redemption
|
33
|
|
Section 3.01
|
Additional Amounts.
|
33
|
Section 3.02
|
Optional Redemption with a Make-Whole Premium
|
34
|
Section 3.03
|
Optional Redemption Without a Make-Whole Premium.
|
35
|
Section 3.04
|
Optional Redemption upon Sale of Equity Interests
|
35
|
Section 3.05
|
Redemption for Taxation Reasons.
|
36
|
Section 3.06
|
Method, Effect and Notice of Redemption.
|
36
|
Section 3.07
|
Notice of Redemption by the Company.
|
37
|
Section 3.08
|
Offer to Purchase.
|
37
|
Section 3.09
|
Deposit of Redemption Price.
|
38
|
Section 3.10
|
Effect of Notice of Redemption.
|
38
|
Section 3.11
|
Offer to Purchase.
|
38
|
Article 4 Covenants
|
41
|
|
Section 4.01
|
Payment of Principal and Interest under the Notes.
|
41
|
Section 4.02
|
Maintenance of Office or Agency.
|
42
|
Section 4.03
|
Maintenance of Corporate Existence.
|
42
|
Section 4.04
|
Payment of Taxes and other Claims.
|
43
|
Section 4.05
|
Compliance with Applicable Laws.
|
43
|
Section 4.06
|
Maintenance of Properties and Insurance.
|
43
|
Section 4.07
|
Limitation on Debt and Disqualified Stock.
|
43
|
Section 4.08
|
Limitation on Restricted Payments.
|
47
|
Section 4.09
|
Limitation on Transfer of the Company’s Voting Stock.
|
49
|
Section 4.10
|
Limitation on Liens.
|
49
|
Section 4.11
|
Limitation on Sale and Leaseback Transactions.
|
50
|
Section 4.12
|
Limitation on Dividend and other Payment Restrictions Affecting Restricted Subsidiaries
|
50
|
Section 4.13
|
Repurchase of Notes Upon a Change of Control.
|
52
|
Section 4.14
|
Limitation on Asset Sales.
|
52
|
Section 4.15
|
Limitation on Transactions with Shareholders and Affiliates.
|
53
|
Section 4.16
|
Maintenance of Books and Records.
|
55
|
Section 4.17
|
Financial Reports
|
55
|
Section 4.19
|
Ranking
|
56
|
Section 4.20
|
Limitations and Restrictions on the Company
|
56
|
Section 4.21
|
Paying Agent and Transfer Agent
|
56
|
Section 4.22
|
Covenant Suspension.
|
57
|
Article 5 Consolidation, Merger or Transfer of Assets
|
58
|
|
Section 5.01
|
Consolidation, Merger or Sale of Assets by the Guarantor; No Lease of All or Substantially All Assets.
|
58
|
Article 6 Default and Remedies
|
59
|
|
Section 6.01
|
Events of Default.
|
59
|
Section 6.02
|
Acceleration.
|
60
|
Section 6.03
|
Notices; Other Remedies
|
61
|
Section 6.04
|
Waiver of Past Defaults.
|
61
|
Section 6.05
|
Control by Majority.
|
61
|
Section 6.06
|
Limitation on Suits.
|
62
|
Section 6.07
|
Rights of Holders to Receive Payment.
|
62
|
Section 6.08
|
Collection Suit by Trustee.
|
62
|
Section 6.09
|
Trustee May File Proofs of Claim.
|
62
|
Section 6.10
|
Priorities.
|
63
|
Section 6.11
|
Restoration of Rights and Remedies.
|
63
|
Section 6.12
|
Undertaking for Costs.
|
63
|
Section 6.13
|
Rights and Remedies Cumulative.
|
64
|
Section 6.14
|
Delay or Omission Not Waiver.
|
64
|
Section 6.15
|
Waiver of Stay, Extension or Usury Laws.
|
64
|
Article 7 The Trustee
|
64
|
|
Section 7.01
|
General
|
64
|
Section 7.02
|
Certain Rights of Trustee
|
65
|
Section 7.03
|
Individual Rights of Trustee.
|
67
|
Section 7.04
|
Trustee’s Disclaimer.
|
67
|
Section 7.05
|
Notice of Default.
|
67
|
Section 7.06
|
Compensation And Indemnity.
|
68
|
Section 7.07
|
Replacement of Trustee.
|
69
|
Section 7.08
|
Successor Trustee by Merger.
|
70
|
Section 7.09
|
Eligibility.
|
70
|
Section 7.10
|
Money Held in Trust.
|
70
|
Section 7.11
|
Paying and Transfer Agent
|
70
|
Article 8 Defeasance and Discharge
|
73
|
|
Section 8.01
|
Discharge of Company’s and Guarantor’ Obligations.
|
73
|
Section 8.02
|
Legal Defeasance.
|
74
|
Section 8.03
|
Covenant Defeasance.
|
75
|
Section 8.04
|
Application of Trust Money.
|
75
|
Section 8.05
|
Repayment to Company.
|
76
|
Section 8.06
|
Reinstatement.
|
76
|
Article 9 Amendments, Supplements and Waivers
|
76
|
|
Section 9.01
|
Amendments Without Consent of Holders.
|
76
|
Section 9.02
|
Amendments With Consent of Holders.
|
77
|
Section 9.03
|
Effect of Consent.
|
78
|
Section 9.04
|
Trustee’s Rights and Obligations.
|
78
|
Article 10 Guarantee
|
79
|
|
Section 10.01
|
The Note Guarantee.
|
79
|
Section 10.02
|
Guarantee Unconditional.
|
79
|
Section 10.03
|
Discharge; Reinstatement.
|
80
|
Section 10.04
|
Waiver by the Guarantor.
|
80
|
Section 10.05
|
Subrogation.
|
80
|
Section 10.06
|
Stay of Acceleration.
|
80
|
Section 10.07
|
Limitation on Amount of Guarantee.
|
80
|
Section 10.08
|
Execution and Delivery of Guarantee.
|
80
|
Section 10.09
|
Release of Guarantee.
|
81
|
Article 11 Miscellaneous
|
81
|
|
Section 11.01
|
Holder Communications; Holder Actions
|
81
|
Section 11.02
|
Notices.
|
82
|
Section 11.03
|
Certificate and Opinion as to Conditions Precedent.
|
84
|
Section 11.04
|
Statements Required in Certificate or Opinion.
|
84
|
Section 11.05
|
Payment Date Other Than a Business Day.
|
84
|
Section 11.06
|
Governing Law.
|
84
|
Section 11.07
|
Submission to Jurisdiction; Agent for Service; Waiver of Immunities
|
84
|
Section 11.08
|
Judgment Currency
|
85
|
Section 11.09
|
No Adverse Interpretation of Other Agreements.
|
86
|
Section 11.10
|
Successors.
|
86
|
Section 11.11
|
Duplicate Originals.
|
86
|
Section 11.12
|
Separability.
|
86
|
Section 11.13
|
Table of Contents and Headings.
|
86
|
Section 11.14
|
No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders.
|
86
|
EXHIBIT A
|
Form of Note
|
EXHIBIT B
|
Form of Supplemental Indenture
|
EXHIBIT C
|
Restricted Legend
|
EXHIBIT D
|
DTC Legend
|
EXHIBIT E
|
Regulation S Certificate
|
EXHIBIT F
|
Rule 144A Certificate
|
A
|
B
|
C
|
U.S. Global Note
|
U.S. Global Note
|
(1)
|
U.S. Global Note
|
Offshore Global Note
|
(2)
|
A
|
B
|
C
|
U.S. Global Note
|
Certificated Note
|
(3)
|
Offshore Global Note
|
U.S. Global Note
|
(4)
|
Offshore Global Note
|
Offshore Global Note
|
(1)
|
Offshore Global Note
|
Certificated Note
|
(1)
|
Certificated Note
|
U.S. Global Note
|
(4)
|
Certificated Note
|
Offshore Global Note
|
(2)
|
Certificated Note
|
Certificated Note
|
(3)
|
Period
|
Redemption Price
|
2018
|
102.500%
|
2019
|
101.666%
|
2020
|
100.833%
|
2021 and thereafter
|
100.000%
|
COSAN LUXEMBOURG S.A.
as Issuer
|
|||
|
By:
|
/s/ Marcelo Eduardo Martins | |
Name: Marcelo Eduardo Martins | |||
Title: Director |
|
By:
|
/s/ Richard Brekelmans | |
Name: Richard Brekelmans | |||
Title: Director B |
COSAN S.A. INDÚSTRIA E COMÉRCIO
as Guarantor
|
|||
|
By:
|
/s/ Marcos Marinho Lutz | |
Name: Marcos Marinho Lutz | |||
Title: Officer |
|
By:
|
/s/ Marcelo de Souza Scarcela Portela | |
Name: Marcelo de Souza Scarcela Portela | |||
Title: Officer |
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee, Registrar, Principal Paying Agent, and Transfer Agent
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
/s/ Wanda Camacho | |
Name: Wanda Camacho
|
|||
Title: Vice President
|
|
By:
|
/s/ Rodney Gaughan | |
Name: Rodney Gaughan
|
|||
Title: Vice President |
DEUTSCHE BANK LUXEMBOURG S.A.
|
|||
|
By:
|
/s/ Wanda Camacho | |
Name: Wanda Camacho, Vice President
|
|||
Title: Attorney in Fact
|
|
By:
|
/s/ Rodney Gaughan | |
Name: Rodney Gaughan, Vice President
|
|||
Title: Attorney in Fact
|
No. [R-1 / S-1]
|
$[●]
|
Date:
|
COSAN LUXEMBOURG S.A.
|
||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee, Registrar, Principal Paying Agent, Transfer Agent and Calculation Agent
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
COSAN S.A. INDÚSTRIA E COMÉRCIO
as Guarantor
|
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
Insert Taxpayer Identification No.
|
Please print or typewrite name and address including zip code of assignee
|
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
|
Seller
|
||
By
|
||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
|
1
|
Include in Rule 144A Note.
|
2
|
Include in Regulation S Note.
|
By
|
||
To be executed by an executive officer
|
3
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
4
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
Date of transfer or Exchange
|
Amount of decrease in principal amount of this Global Note
|
Amount of increase in principal amount of this Global Note
|
Principal amount of this Global Note following such decrease (or increase)
|
Signature of authorized officer of Trustee
|
5
|
For Global Notes
|
SUPPLEMENTAL INDENTURE
|
|||
dated as of __________, ____
among
COSAN LUXEMBOURG S.A.,
as Issuer,
the [ADDITIONAL GUARANTOR(S)] Party Hereto,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee, Registrar, Paying Agent and Transfer Agent,
and
DEUTSCHE BANK LUXEMBOURG S.A.,
as Luxembourg Paying Agent
|
5.00%
Senior Notes due
March 14, 2023
|
COSAN LUXEMBOURG S.A.
as Issuer
|
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
[ADDITIONAL GUARANTOR]
as Guarantor |
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee, Registrar, Principal Paying Agent, and Transfer Agent
|
|||
By:
|
DEUTSCHE BANK NATIONAL TRUST COMPANY
|
||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
DEUTSCHE BANK LUXEMBOURG S.A.
|
|||
|
By:
|
||
Name: | |||
Title: |
|
By:
|
||
Name: | |||
Title: |
|
6 No Reg Rights on this transaction. Does this legend belong here?
|
Re:
|
COSAN LUXEMBOURG S.A., as Issuer public limited liability company (société anonyme) organized under the laws of Luxembourg, having its registered office at 13-15 Avenue de la Liberté, L-1931 Luxembourg, Grand Duchy of Luxembourg registered with the Luxembourg Register of Commerce and Companies under number B 175.646
5.00% Senior Notes due March 14, 2023 (the “Notes”) Issued under the Indenture (the “Indenture”) dated as of March 14, 2013 relating to the Notes
|
o A.
|
This Certificate relates to our proposed transfer of $____ principal amount of Notes issued under the Indenture. We hereby certify as follows:
|
|
1.
|
The offer and sale of the Notes was not and will not be made to a person in the United States (unless such person is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3)) and such offer and sale was not and will not be specifically targeted at an identifiable group of U.S. citizens abroad.
|
|
2.
|
Unless the circumstances described in the parenthetical in paragraph 1 above are applicable, either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States;
|
|
3.
|
Neither we, any of our affiliates, nor any person acting on our or their behalf, has made any directed selling efforts in the United States with respect to the Notes;
|
|
4.
|
The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
|
|
5.
|
If we are an officer or director of the Company or an Initial Purchaser (as defined in the Indenture), we certify that the proposed transfer is being made in accordance with the provisions of Rule 904(b) of Regulation S.
|
o B.
|
This Certificate relates to our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. We hereby certify as follows:
|
|
1.
|
At the time the offer and sale of the Notes was made to us, either (i) we were not in the United States or (ii) we were excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by us for which we were acting was excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3); and we were not a member of an identifiable group of U.S. citizens abroad;
|
|
2.
|
Unless the circumstances described in paragraph 1(ii) above are applicable, either (a) at the time our buy order was originated, we were outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and we did not pre-arrange the transaction in the United States.; and
|
|
3.
|
The proposed exchange of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.
|
Very truly yours,
|
|||
[NAME OF SELLER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]
|
|||
|
By:
|
||
Name: | |||
Title: |
7
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
Re:
|
COSAN LUXEMBOURG S.A., as Issuer
5.00% Senior Notes due March 14, 2023 (the “Notes”) Issued under the Indenture (the “Indenture”) dated as of March 14, 2013 relating to the Notes
|
o A.
|
Our proposed purchase of $____ principal amount of Notes issued under the Indenture.
|
o B.
|
Our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.
|
Very truly yours,
|
|||
[NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]
|
|||
|
By:
|
||
Name: | |||
Title: |
8
|
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
|
(1)
|
Esso Petroleum Company, Limited, a company incorporated under the laws of England whose registered office is at ExxonMobil House, Ermyn Way, Leatherhead, Surrey KT22 8UX (the “Vendor”); and
|
(2)
|
COSAN S/A INDÚSTRIA E COMÉRCIO, a publicly traded company, duly Incorporated and existing under the laws of the Federative Republic of Brazil, with its headquarters at Avenida Juscelino Kubitscheck, 1327, 4° andar, City of Sao Paulo, State of Sao Paulo, enrolled with the Brazilian Tax Authorities under the number CNPJ 50.746.577/0001-15 (the “Purchaser”),
|
A.
|
Comma Oil & Chemicals Limited (the “Company”) is a limited liability company incorporated under the laws of England, with registration number 02075698, and whose registered office is at Dering Way, Gravesend, Kent DA12 2QX.
|
B.
|
The Vendor is the owner of 100% of the share capital of the Company.
|
C.
|
The Vendor and the Purchaser entered into a Confidentiality Agreement with Cosan Combustíveis e Lubrificantes SA dated 18 April 2011.
|
D.
|
A Confidential Information Memorandum regarding the Company dated 31 March 2011 was provided by the Vendor to the Purchaser (or an affiliate of the Purchaser on its behalf) and the Purchaser has completed its due diligence process.
|
E.
|
The Vendor wishes to sell and the Purchaser wishes to purchase shares representing 100% of the issued share capital of the Company on the terms and subject to the conditions of this Agreement.
|
CLAUSE 1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
In this Agreement, unless there is something inconsistent in the subject or the context, the following words and expressions shall have the meanings as set out below:
|
(i)
|
with respect to the Vendor:
|
(a)
|
Exxon Mobil Corporation;
|
|
(b)
|
any company or partnership in which Exxon Mobil Corporation now or hereafter owns or controls, directly or indirectly, more than 50% of the ownership interest having the right to vote or appoint its directors/managers or functional equivalents (an “Affiliated Company”);
|
|
(c)
|
any joint venture in which Exxon Mobil Corporation or an Affiliated Company is the operator,
|
|
(ii)
|
with respect to the Purchaser, any company, legal entity or partnership which (a) controls either directly or indirectly the Purchaser or (b) which is controlled directly or indirectly by the Purchaser, or (c) is directly or indirectly controlled by a company, other legal entity or partnership which directly or indirectly controls the Purchaser. “Control” (including the terms “controlled by” and “under common control with”) for the purposes of the immediately preceding sentence and when used with respect to any specified company, partnership or legal entity, means the power to direct or cause the direction of the management and policies of the company, partnership or legal entity, whether through the ownership directly or indirectly of more than 50% of the voting securities, by contract or otherwise.
|
|
(i)
|
air (including without limitation air within buildings and air within other natural or man-made structures, whether above or below ground);
|
|
(ii)
|
water (including without limitation water on, under or within land, or in drains or sewers, and coastal and inland waters);
|
(iii)
|
land (including land under water); and
|
(iv)
|
in the case of man includes his property;
|
|
(i)
|
a materials outline agreement A2198125 dated 1 June 2009 between (1) ExxonMobil lubricants & Specialties Europe, a division of ExxonMobil Petroleum & Chemical b.v.b.a, and (2) the Company; and
|
|
ii)
|
a purchase agreement number A2104082 dated 7 August 2007 between (1) ExxonMobil Asia Pacific Private Ltd, and (2) the Company,
|
|
(i)
|
the supply of group I base oils to the Company by ExxonMobil Petroleum & Chemical b.v.b.a;
|
(ii)
|
the supply of group Ill base oils to the Company by B & N Oil and Chemicals:
|
(iii)
|
the supply of additives to the Company by Chevron Oronite and Lubrizol;
|
(iv)
|
the supply of barrels to the Company by Grief;
|
|
(v)
|
the supply of HDPE to the Company by ExxonMobil Chemical Limited for the purposes of blow-moulding packs; and
|
|
(vi)
|
the supply of glysantin to the Company by BASF Aktiengesellschaft and BASF SE;
|
Account number:
|
***/**/********
|
Beneficiary Bank:
|
Banco Bradesco SA
|
Swift:
|
BBDEBRSPSPO
|
Correspondent Bank:
|
National Westminster Bank PLC- London
|
Swift:
|
NWBKGB2L
|
|
(i)
|
the three month London Interbank offered rate for deposits in sterling, calculated by the British Bankers’ Association and quoted on the "LIBOR01" page on the Reuters Monitor Money Rates Service (or such other page as may replace such page on such service for the purpose of displaying London Interbank offered rates for sterling deposits) at or about 11.00 a.m. London time on the relevant day; or
|
|
(ii)
|
if no such rate is reported at the relevant time on the relevant day, the arithmetic mean (rounded upwards to four decimal places) of the rates quoted by the principal London offices of Lloyds TSB Bank plc, Barclays Bank plc and HSBC Bank plc to prime banks in the London Interbank market at or about 11.00 a.m. London time on the day for three month sterling deposits; or,
|
|
(iii)
|
if the rates in (i) and (ii) above are, for any reason, not available on the relevant day, such comparable rate as the Parties may agree.
|
(i)
|
at the Completion Date is in the public domain; or
|
|
(ii)
|
after the Completion Date becomes a part of the public domain through no fault of the Purchaser or the Company (but only after and only to the extent that it becomes a part of the public domain); or
|
|
(iii)
|
was in the possession of the Purchaser at the Completion Date and which the Purchaser without breach of any obligation is free to disclose to third parties; or
|
|
(ii)
|
was received by the Purchaser or the Company after the Completion Date from a third party who had the lawful right to disclose it to third parties.
|
1.2
|
Except where the context requires otherwise or where there would be a conflict with the express terms of this Agreement, references to any Legislation or provision of any Legislation shall be construed as references to that legislation or provision as re-enacted, amended, extended, consolidated or replaced from time to time before the Execution Date, and includes any order, regulation, instrument or subordinate Legislation made under the relevant Legislation.
|
1.3
|
The table of contents and headings in this Agreement are for convenience only and shall not affect the construction of this Agreement.
|
1.4
|
Except where the context requires otherwise, or where there would be a conflict with the express terms of this Agreement, references in this Agreement to Clauses, paragraphs and schedules are to Clauses, paragraphs and schedules to this Agreement.
|
1.5
|
In this Agreement, the use of one gender shall include the other and the singular number shall include the plural and vice versa. In particular, references to “its Affiliates” with respect to the Vendor and similar terms in the plural shall be understood to include any single Affiliate of the Vendor.
|
1.6
|
All periods which are expressed to commence on one date and end on another, or to fall between two dates, are inclusive of the first day and exclusive of the last day. All dates and periods of time referred to in this Agreement, or which are to be calculated as a result of any provision of this Agreement, are dates and periods by reference to, and are to be calculated by reference to, the Gregorian calendar.
|
1.7
|
In this Agreement, references to a time of day are to UK time and references to a day are to a period of 24 hours running from midnight on the previous day.
|
1.8
|
Except where the context requires otherwise, or where there would be a conflict with the express terms of this Agreement, in this Agreement "writing" and "written" both include facsimile transmissions, telex, cable, telegrams and all other methods of reproducing or communicating in visible and permanent form including communications by electronic mail.
|
1.9
|
The expressions "ordinary course of business" or "business in the ordinary course" mean the ordinary and usual. course of business of the Company, materially consistent (including nature and scope) with the prior practice of the Company.
|
CLAUSE 2.
|
SALE AND PURCHASE
|
2.1
|
the Vendor shall sell and the Purchaser shall purchase the Sale Shares free from Encumbrances and together with all benefits, rights, liabilities and obligations now or hereafter attaching to them;
|
2.2
|
as part of this Transaction, the Purchaser shall pay, or shall procure that the Company shall pay, to the Vendor (or the relevant Affiliate of the Vendor, as the case may be) the value of the Inter-Affiliate Payables in accordance with Applicable Law; and
|
2.3
|
as part of this Transaction, the Vendor shall pay or shall procure that its Affiliates shall pay to the Company, as the case may be, the value of the Inter-Affiliate Receivables in accordance with Applicable Law.
|
CLAUSE 3.
|
CONSIDERATION
|
3.1
|
The consideration for the sale of the Sale Shares shall be payment by the Purchaser of the Purchase Price which shall be adjusted in accordance with Clause 13.
|
3.2
|
The Purchaser shall pay to the Vendor the Downpayment immediately on signing this Agreement by means of a cash transfer in immediately available funds into the Vendor's Bank Account.
|
3.3
|
Subject to the provisions of this Agreement (including without limitation Clauses 4.3 and 4.4), the Vendor shall give the Purchaser at least five Business Days’ notice of the Completion Date and shall provide the Purchaser with:
|
|
(a)
|
notice of any adjustments to the Purchase Price required pursuant to Clause 13 and the Final Purchase Price due reflecting those adjustments; and
|
|
(b)
|
a schedule of the provisional values of the Inter-Affiliate Payables and the Inter-Affiliate Receivables at such date, in the form set out in Schedule 5.
|
3.4
|
On the Completion Date:
|
|
(a)
|
the Purchaser shall pay the Final Purchase Price; and
|
|
(b)
|
the Purchaser shall, or shall procure that the Company shall, pay the provisional value of the Inter-Affiliate Payables,
|
|
(c)
|
the Vendor shall pay, or shall procure that its relevant Affiliates shall pay to the Company the provisional value of the Inter-Affiliate Receivables as per the
|
|
|
schedule referred to in Clause 3.3(b) by means of a cash transfer in immediately available funds.
|
3.5
|
Within 30 Business Days from the Completion Date the Vendor shall:
|
|
(a)
|
determine the final values at Completion Date of the Inter-Affiliate Payables and Inter-Affiliate Receivables, taking into account any properly and duly documented Inter-Affiliate Payables or Inter-Affiliate Receivables not identified in the provisional schedule provided by the Vendor under Clause 3.3(b) (the "Final Values"); and
|
|
(b)
|
deliver to the Purchaser a complete list of the Final Values in the form set out in Schedule 5.
|
|
Within the following 10 Business Days:
|
|
(i)
|
if the Final Values are not contested by the Purchaser, (A) the Vendor shall (or shall procure its Affiliates shall), or (B) as the case may be, the Purchaser shall (or shall procure the Company shall), make payment to the relevant Party of any difference between the Final Values and the provisional values paid under Clause 3.4(b) and 3.4(c);
|
|
(ii)
|
if the Final Values are contested by the Purchaser to the extent that such objections represent an aggregate value of no less than £50,000, the Purchaser shall submit its contests and explanations to the Vendor and the Parties shall try to amicably settle their disagreement within the following 10 Business Days. In the event of such settlement, (A) the Vendor shall (or shall procure Its Affiliates shall), or (B) as the case may be, the Purchaser shall (or shall procure the Company shall), within a further 10 Business Days make payment to the relevant party of the agreed difference between the Final Values and the provisional values paid under Clause 3.4(b) and 3.4(c); or
|
|
(iii)
|
if the Parties are unable to settle all disagreements with respect to the Final Values within the first 10 Business Day period described in paragraph (ii), any such matters remaining in dispute shall be submitted to KPMG LLP in London, and the Parties shall instruct such firm that the determination of such firm with respect to such disagreements and the Final Values shall be completed within 20 Business Days after the submission to such firm. Such determination shall, absent manifest error or fraud, be final and binding upon the Parties, and (A) the Vendor shall (or shall procure its Affiliates shall) or (II) as the case may be, the Purchaser shall (or shall procure that the Company shall) make payment to the relevant Party of any difference between the Final Values as determined by KPMG LLP and the provisional .values paid under Clause 3.4(b) and (c), in each case within 10 Business Days after the making of such determination. The fees, costs arid expenses of KPMG LLP shall be split equally between the Parties. In case the Parties do not reach an agreement as to the scope of work or set of documents to ·be provided to KPMG LLP, the matter shall be referred to arbitration under Clause 16.
|
3.6
|
If any amount required to be paid under this Agreement is not received by its due date then such amount shall bear interest at the rate per annum of Three Month GBP LIBOR plus 4% for the period from the relevant due date for payment up to but excluding the date of actual payment, after as well as before judgment.
|
3.7
|
Payments between the Parties under this Agreement, unless otherwise agreed, shall be made in immediately available funds to and received in the Vendor's Bank Account or the Purchaser's Bank Account, as the case may be, and other payments to be made under this Agreement shall be made in accordance with the payment instructions of the other Party.
|
3.8
|
Inter-Affiliate Payables or Inter-Affiliate Receivables for which payment is made pursuant to Clauses 3.4 and/or 3.5 will be considered settled, assumed, discharged or assigned, as the case may be, upon receipt of payment and the relevant Party shall provide written confirmation of such, or shall procure that the Company or their Affiliates, as the case may be, provide such written confirmation.
|
3.9
|
The Purchaser shall procure that the Company shall pay the Final Contribution to the Defined Benefit Pension Scheme in accordance with the current schedule of contributions, and no later than 19th of the month in which Completion occurs.
|
CLAUSE 4.
|
CONDITIONS PRECEDENT AND COMPLETION
|
4.1
|
Completion is subject to and conditional on compliance with the following conditions:
|
|
(a)
|
Execution of a Deed of Cessation and Apportionment by all the parties thereto.
|
|
(b)
|
No legislation or Order shall have been enacted, entered, promulgated or enforced by any court or other Public Authority which prohibits the Transaction or has the effect of making the Transaction illegal.
|
|
(c)
|
That the Warranties that are to be made at the Completion Date as determined by Clause 6.4 are true and correct in all material respects as of the Completion Date, (or whether there is a failure for a Warranty or Warranties to be true and correct in all material respects, that such failure does not have or would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets or financial condition of the Company greater than £1 ,000,000), and the Vendor shall have delivered to the Purchaser a certificate of a duly authorised officer of the Vendor, dated the Completion Dale, to such effect.
|
|
(d)
|
That all of the agreements, undertakings and covenants of the Vendor to be performed prior to Completion pursuant to this Agreement shall have been duly performed in all material respects, (or whether there is a failure to duly perform such agreement, undertaking and/or covenant in all material respects, that such failure does not have or would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets or financial condition of the Company greater than £1,000,000), and the Vendor shall have delivered to the Purchaser a certificate of a duly authorised officer of the Vendor, dated the Completion Date, to such effect.
|
|
(e)
|
That since the Accounts Date, there shall not have occurred any event, circumstance, development, state of facts, occurrence, change or effect that (after taking into account any actions of the Company or the Vendor to mitigate such effects) has had, or would reasonably be expected to have a material adverse effect on the business, assets or financial condition of the Company greater than £1,000,000, (provided that effects of or changes in general political, economic, financial, capital market or industry-wide conditions) including changes in interest rates or applicable foreign exchange rates) shall not be taken into account in determining whether such a material adverse effect has occurred), and the Vendor shall have delivered to the Purchaser a certificate of a duly authorised officer of the Vendor, dated the Completion Date, to such effect.
|
4.2
|
The Vendor agrees that it shall keep the Purchaser informed of progress with regard to satisfaction of the Condition Precedent set out at Clause 4.1 (a).
|
4.3
|
Completion shall take place:
|
|
(a)
|
on the first day of the fourth month following the Execution Date, or
|
|
(b)
|
if (i) the Conditions Precedent are not each satisfied or waived, either by agreement between the Parties or, where a Party has the sole responsibility to provide satisfaction, by the other Party alone, by or on such date, or (ii) the Parties agree that Completion should be delayed in order to allow the Purchaser time to complete activities relating to the continuation of the Company's business and operations on and from Completion, on the first day of the first month following the date on which (A) the Conditions Precedent are each satisfied and (B) the Parties agree that Completion should proceed,
|
|
provided that
|
|
(I)
|
in circumstances where Completion has not taken place pursuant to paragraphs (a) or (b) above, and the Conditions Precedent are each satisfied or waived by the first day of the seventh month following the Execution Date, then Completion shall take place on such date; and
|
|
(II)
|
and in the event that the Conditions Precedent are not satisfied or waived by the first day of the seventh month following the Execution Date, and subject to Clause 4,13 Completion shall take place on the first day of the first month following the date on which the Conditions Precedent are each satisfied or waived.
|
4.4
|
If the day on which Completion shall take place pursuant to Clause 4.3 Is not a Business Day, then the Parties agree that all actions to be performed under Clause 4.6, in addition to payment of the amounts provided in Clause 3.4, shall be taken on the Business Day immediately prior to that date and, following the performance of these actions (including payment), title and ownership of the Sale Shares shall be transferred effective on the Completion Date.
|
4.5
|
Completion shall take place at a location in the United Kingdom selected by the Vendor in its sole discretion.
|
4.6
|
On or before the Completion Date (as provided in Clauses 4.3 and 4.4):
|
|
(a)
|
the Purchaser shall:
|
|
(i)
|
comply with its obligations under Clause 3.4(a) and (b);
|
|
(ii)
|
deliver a certified copy of the resolution adopted by the board of directors of the Purchaser authorising the Transaction and the execution and delivery by the officers specified in the resolution of (A) this Agreement, and (B) any other documents referred to in this Agreement as being required to be delivered by it;
|
|
(iii)
|
deliver a certified copy of the resolution(s) passed by the shareholders of the Purchaser authorising the Transaction;
|
|
(iv)
|
deliver if required, a certified copy of any power of attorney under which any document required from the Purchaser under this Clause 4.6 is executed on behalf of the Purchaser; and
|
|
(v)
|
provide written confirmation for itself and for and on behalf of the Company that the provisional values of all Inter-Affiliate Receivables identified in the provisional schedule provided by the Vendor pursuant to Clause 3.3(b) have been paid in full (together with interest due thereon), with a written release in respect of the final value of the Inter-Affiliate Receivables to be provided on payment thereof pursuant to Clause 3.5; and
|
|
(b)
|
the Vendor shall, provided it has verified that the Purchaser has complied with its obligations under Clause 3.4(a) and (b):
|
|
(i)
|
comply with its obligation under Clause 3.4(c);
|
|
(ii)
|
provide written confirmation for itself and for and on behalf of its relevant Affiliates that the provisional values of all Inter-Affiliate Payables identified in the provisional schedule provided by the Vendor pursuant to Clause 3.3(b) have been paid in full (together with interest due thereon), with a written release in respect of the final value of the Inter-Affiliate Payables to be provided on payment thereof pursuant to Clause 3.5;
|
|
(iii)
|
deliver transfers of the Sale Shares executed by the registered holder in favour of the Purchaser;
|
|
(iv)
|
deliver the share certificates in respect of the Sale Shares in the name of the registered holder;
|
|
(v)
|
deliver the Company’s share register reflecting the Purchaser as the owner of the Sale Shares; and
|
|
(vi)
|
deliver if required, a certified copy of any power of attorney under which any document required from the Vendor under this Clause 4.6 is executed on behalf of the Vendor.
|
4.7
|
The Purchaser shall, or shall procure that the Company shall, act diligently and expeditiously and use its best endeavours in order to procure the registration of the transfer of the Sale Shares as soon as possible after Completion.
|
4.8
|
In addition to taking the actions and executing and delivering the documentation set out in Clause 4.6, the Parties agree to cooperate with each other to execute and deliver such other documents (if any) as shall reasonably be necessary or desirable to carry out the sale and purchase of the Sale Shares pursuant to this Agreement and the intent of the Parties as reflected herein.
|
4.9
|
The Purchaser agrees that the Vendor may retain copies of all books and corporate records that contain information of the Company and all other copies of accounting books and records prepared in connection with the financial statements of the Company.
|
4.10
|
The Vendor shall procure that on or before Completion the Company is released from all rights and obligations under (i) Multi-National EM Contracts, (ii) Inter-Affiliate Contracts, and (iii) GEMA Third Party Contracts, except in relation to:
|
|
(a)
|
contracts, arrangements or agreements that automatically terminate upon the relevant Company ceasing to be an Affiliate of ExxonMobil;
|
|
(b)
|
any contract, arrangement or agreement pursuant to which, before Completion, goods and/or services had been ordered but not delivered in which case such contract, arrangement or agreement shall continue only in respect of the obligations which the Company and the Vendor (or the relevant Affiliate of the Vendor) have in respect of such goods and/or services and after fulfilment of
|
|
|
such obligations the Company shall be released from all rights and obligations under the relevant contract, arrangement or agreement as applicable; and
|
|
(c)
|
any Inter-Affiliate Payables and Inter-Affiliate Receivables (which are to be dealt with in accordance with Clause 3.5).
|
4.11
|
The Purchaser acknowledges and agrees that all services provided to the Company by the Vendor or any of its Affiliates will be terminated and will stop at Completion and shall be arranged for by the Purchaser at its discretion for the period thereafter.
|
4.12
|
If the respective obligations of the Vendor or the Purchaser under Clauses 3.4 and 4.6 are not complied with on the Completion Date, the non-defaulting Party may:
|
|
(a)
|
defer Completion until a new date of its choice after consultation with the other Party (in which. case this Clause 4,12(a) will apply to Completion as so deferred) but not beyond the Longstop Date; or
|
|
(b)
|
waive all or any such requirements and proceed to Completion as far as practicable (without limiting its rights, whether under this Agreement or otherwise); or
|
|
(c)
|
terminate this Agreement by notice in writing to the other Party, but only in circumstances where the other Party has materially failed to comply with the requirements of Clauses 3.4 and 4.6.
|
4.13
|
If the Conditions Precedent have not been satisfied or waived, either by agreement between the Parties or, where a Party has the sole responsibility to procure satisfaction, by the other Party alone, by the Longstop Date then this Agreement shall terminate and the provisions of Clause 4.14 shall apply provided however that if, prior to the Longstop Date, either Party has initiated any action or proceeding challenging such termination and/or seeking to exercise any equitable remedies to compel that other Party to perform its obligations under this Agreement, no such termination shall be effective until the later of (i) the Longstop Date and (ii) the date that is 30 days after the date on which any applicable court or arbitration panel shall have finally determined that the other Party is entitled to terminate this Agreement pursuant to its terms.
|
4.14
|
If this Agreement is terminated In accordance with Clause 4.12(c), Clause 4.13 or Clause 21:
|
|
(a)
|
the Vendor shall refund to the Purchaser as soon as reasonably practicable or otherwise as provided in this Agreement the Downpayment provided that if the Purchaser is in breach of any material provisions of this Agreement, the Vendor may retain a portion of the Downpayment equal to the amount of damages incurred by the Vendor as a result of such breach (without prejudice to any other remedies available under this Agreement or under Applicable Law);
|
|
(b)
|
all obligations of the Parties under this Agreement shall end at the time of termination, except for those expressly stated herein to continue provided all rights and liabilities of the Parties which have accrued before termination shall continue to exist; and
|
|
(c)
|
Clauses 9.12, 11 (Confidential Information and Vendor's Technical Information), 12 (Software), 15 (Costs), 16 (Applicable Law and Dispute Resolution), 17 (Business Ethics), 18 (Export Controls and Trade Sanctions), 19 (Entire Agreement), 20 (Assignment), 22 (Notifications), 23 (Variations), 24 (Further Assurance), 25 (Remedies and Waivers), 26 (Third Party Beneficiaries) and 28 (Severability) shall survive termination.
|
4.15
|
With effect from the Completion Date (or, if later, the relevant release date) and as between the Parties and their Affiliates, none of the Company, the Purchaser, the Vendor or any of their Affiliates shall (other than in respect of adjustments to the value of Inter-Affiliate Payables and Inter-Affiliate Receivables made in accordance with this Agreement) have any right of action or remedy in respect of any moneys owed or pre-Completion matters terminated under Clauses 4.6(a)(v) and 4.10, except for post-Completion obligations of confidentiality and use under Clause 11 (Confidential Information and Vendor's Technical Information).
|
4.16
|
The Purchaser agrees that:
|
|
(a)
|
within a reasonable period after the Execution Date, the Vendor shall procure that the Company issues an announcement in a form agreed between the Vendor and the Purchaser to the Employees who, on the Execution Date, are also active members of the Defined Benefit Pension Scheme and any such announcement shall explain the changes to the Employees' pension arrangements that will take effect on and from the Completion Date; and
|
|
(b)
|
it shall contribute to any such notice by providing an explanation of the arrangements the Purchaser shall put in place to comply with its obligations under Clauses 9.1, 9.2 and 9.3.
|
CLAUSE 5.
|
THE INTERIM PERIOD
|
5.1
|
During the Interim Period, the Vendor shall:
|
|
(a)
|
use its powers as shareholder of the Company (but without prejudice to the fiduciary or other duties of any director of the Company) to cause the Company to operate its businesses in the ordinary and usual course, within ordinary expense limits, provided that the Vendor shall not be in breach of the foregoing provision in respect of any commercially reasonable steps the Company may take during the Interim Period:
|
|
(i)
|
to reduce in its books the levels of Inter-Affiliate Payables and Inter-Affiliate Receivables; and
|
|
(ii)
|
to withdraw, on the date of Completion, as a participating employer in the Defined Benefit Pension Scheme and to do all such things as are reasonable (including, but not limited to, making amendments to the Pension Trust Deed) such that, from the date of Completion, the Company no longer has any obligations or liabilities in relation to the Defined Benefit Pension Scheme (apart from the obligation to pay any contributions that have fallen due but remain unpaid as at the date of Completion to the trustees of the Defined Benefit Pension Scheme);
|
|
(b)
|
use its powers as shareholder of the Company (but without prejudice to the fiduciary or other duties of any director of the Company) to procure as far as possible that that the Company uses its commercially reasonable endeavours to preserve intact its business organisations, keep available the services of its officers and employees, and maintain satisfactory relationships with any and all Governmental Authorities, suppliers, distributors or customers;
|
|
(c)
|
subject to any relevant confidentiality obligations to third parties, promptly notify the Purchaser in writing of (i) any Claims known to the Vendor; and (ii) any events (other than general events of an economic, political, legal or regulatory nature that should reasonably be known to the Purchaser), in each case that may reasonably be expected by the Vendor to have a significant adverse economic impact on the situation of the Company (being an event which may reasonably be expected by the Vendor to have an adverse economic impact on the Company exceeding £500,000) up to the Completion Date;
|
|
(d)
|
use its reasonable endeavours to assist the Purchaser in arranging (at the Purchaser’s expense) for appropriate insurance for the Company to become effective on Completion;
|
|
(e)
|
use its reasonable endeavours to assist the Purchaser in achieving material completion of the material steps necessary to enable transfer of System Information;
|
|
(f)
|
procure that the Company provides to the Purchaser monthly management financial reports and copies of the quarterly financial statements for the Company and such other aggregate information with respect to the business and properties ·of the Company as the Purchaser may from time to time reasonably request, provided the obligation contained in this paragraph (f) shall only apply to the extent that:
|
|
(i)
|
such requests by the Purchaser shall not unduly interfere with the business and operations of the Company or the Vendor;
|
|
(ii)
|
the provision of the information does not contravene any Applicable Law, including without limitation any Competition Laws;
|
|
(iii)
|
the information requested is in the form normally prepared and maintained by the Company; and
|
|
(iv)
|
such requests are coordinated through the applicable representatives of the transition committee referred to in Clause 5.4(a).
|
|
(g)
|
procure that the Company delivers to the Vendor prior to the date of Completion all the documents in its possession or control that relate to the Defined Benefit Pension Scheme, including, but not limited to:
|
|
(i)
|
the Defined Benefit Pension Scheme's current governing documentation and other documents that have governed the Defined. Benefit Pension Scheme and all other trust documents of the Defined Benefit Pension Scheme (or copies of such documents if the Company is not in possession or control of the originals);
|
|
(ii)
|
annual reports, accounts and actuarial valuations relating to the Defined Benefit Pension Scheme;
|
|
(iii)
|
booklets, announcements and other circulars that have at any time been issued to all or some members of the Defined Benefit Pension Scheme;
|
|
(iv)
|
all records affecting the calculation and payment of benefits to or in respect of the members of the Defined Benefit Pension Scheme (and persons who would be members if still living); and
|
|
(v)
|
correspondence and documents relating to dealings with Her Majesty's Revenue & Customs, the Inland Revenue, Occupational Pensions Board, Department of Social Security, Contributions Agency, Occupational Pensions Regulatory Authority, Pensions Registry, Pensions Ombudsman, the Pensions Regulator, the Pension Protection Fund, the Department for Work and Pensions or any other regulatory or supervisory body
|
|
(h)
|
not agree with the trustees of the Defined Benefit Pension Scheme any increase in the amounts due from the Company under the schedule of contributions that would have the effect of increasing the amount of the Company's Final Contribution above to more than 21.5% of pensionable pay.
|
5.2
|
During the Interim Period, to the extent permitted by Applicable Law and except with the prior written consent of the Purchaser (which shall not be unreasonably withheld or delayed, and in any event which shall be deemed to have been given if the Purchaser has not responded to the Vendor's written request for consent within 15 Business Days after receipt by the Purchaser) the Vendor shall not:
|
|
(a)
|
dispose of, enter into an agreement to dispose of, grant an option over, or grant any interest in, or encumbrance over, any Sale Shares;
|
|
(b)
|
increase, reduce or otherwise alter the Company’s corporate capital in any way or allow the Company to buy back or agree to buy back shares or other securities in the corporate capital of the Company;
|
|
(c)
|
except with respect to the Defined Benefit Pension Scheme, carry out any merger, acquisition, joint venture or dissolution involving the Company;
|
|
(d)
|
amend or permit the amendment of the memorandum or articles of association of the Company (except for the purposes of implementing this Agreement and the Transaction);
|
|
(e)
|
adopt any new employee benefits plan or any change to the rules of the Benefits currently in effect or to the labour policies currently enforced by the Company except with respect to the Defined Benefit Pension Scheme; or
|
|
(f)
|
change in any material respect the Company’s accounting, commercial, treasury and finance practices and/or policies unless required by Applicable Law or by GAAP.
|
5.3
|
During the Interim Period, to the extent permitted by Applicable Law and except with the prior written consent of the Purchaser (which shall not be unreasonably withheld or delayed, and in any event which shall be deemed to have been given if the Purchaser has not responded to the Vendor's written request for consent within 15 Business Days after receipt by the Purchaser) the Vendor shall procure that the Company shall not:
|
|
(a)
|
incur any monetary obligation or monetary liability in excess of £75,000 individually, except (i) taxes payable and trade payables in connection with purchase of goods and services, (ii) in connection with the payment of payroll expenditures of, payments with respect to pension plan contribution obligations made by, or payment of sums due under the Pension Trust Deed and applicable UK pensions legislation to the Defined Benefit Pension Scheme as they come due by, the Company, (iii) in connection with any payment or judicial deposits made in respect of pending litigation or other claims, (iv) capital expenditures for fixed assets which are permitted under paragraph (c) below, and (v) any other category of expenses agreed in writing by the Purchaser, in each case ·in the ordinary course of business;
|
|
(b)
|
establish any entity, acquire or sell any participation (including silent partnerships) in other entities or incurring the obligation to acquire or sell such participation;
|
|
(c)
|
undertake any capital expenditures for fixed assets not required by Applicable Law, except for ordinary course capital expenditures not exceeding £100,000 in aggregate;
|
|
(d)
|
issue, grant or sell any shares, options, rights, warrants or similar instruments with respect to any of the share capital of, or member interests (or other applicable equity interests) in the Company, or enter into any hedging or derivatives;
|
|
(e)
|
hire, fire or revoke the employment of any Employee whose annual gross compensation exceeds £60,000, except in the ordinary course of business or except if such firing or revocation is for cause;
|
|
(f)
|
enter into any new contract with a third party for services to be provided to the Company that will have any material impact after the Completion Date;
|
|
(g)
|
enter into any guarantee of obligations of any Affiliate of the Vendor (other than commercial guarantees by the Company of their own performance obligations to third parties or their businesses) or releasing (except after the payment In full of such obligations) any Affiliate of the Vendor from any obligations payable to the Company;
|
|
(h)
|
acquire any Person or business, or divest any portion of the business of the Company or enter into any binding agreement, letter of intent or similar arrangement with respect to the foregoing;
|
|
(i)
|
sell, transfer, lease or otherwise dispose of or acquire any assets exceeding £25,000 in aggregate, except in the ordinary course of business;
|
|
(j)
|
change, to the detriment of the Company, the terms of any contract that gives rise to Inter-Affiliate Payables or Inter-Affiliate Receivables from those that have been disclosed to the Purchaser prior to the Execution Date;
|
|
(k)
|
enter into any new contract that gives rise to Inter-Affiliate Payables or Inter-Affiliate Receivables;
|
|
(l)
|
amend the interest on any interest-bearing inter-company loans except on terms consistent with arm's length loan principles and in line with past practice reasonably applied by the Company and the Affiliates of the Vendor;
|
|
(m)
|
make any payment of any kind (including, but not limited to, any payment out of a member's account, special interest payment, capital reduction, distribution or payment of any consulting, advisory, management, service, directors, monitoring
|
|
|
or other fee, bonus or payment of any kind) to the Vendor or any of its Affiliates (other than the Company), other than a payment for goods received or actual services rendered at arm's length terms and conditions;
|
|
(n)
|
assume or incur any Indebtedness with a duration longer than 12 months, or enter into any material indemnity arrangement or material guarantee;
|
|
(o)
|
make or change any Tax election, make a substantive amendment to any Tax return or enter into any agreement in respect of Taxes, including the settlement of any Tax controversy involving more than £10,000, adopt or change of any accounting method in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
|
|
(p)
|
waive any amount owed to the Company by the Vendor or any of its Affiliates;
|
|
(q)
|
create or suffer to exist any Encumbrance over its assets in favour of the Vendor or any of Its Affiliates;
|
|
(r)
|
conduct its cash management customs and practices (including the collection of receivables and the payment of payables) other than the ordinary course of business consistent with ·past practice and with prudent cash management practices; or
|
|
(s)
|
enter into any binding agreement or commitment to do any of things referred to in (a) through (s) above, unless permitted to do so under the described limitation.
|
5.4
|
The Vendor and the Purchaser agree that:
|
|
(a)
|
after the Execution Date, a transition committee comprising representative of the Purchaser and representatives of the Vendor (in consultation with the Company's management) will be established which shall meet on a monthly basis or as otherwise required during the Interim Period in order to facilitate the implementation of the Transaction;
|
|
(b)
|
the transition committee referred to in paragraph (a) is not intended to take on any functions of management of the Company but will nonetheless provide a forum for the Parties to liaise and, where lawful to do so, coordinate on all appropriate and reasonable matters in order to:
|
|
(i)
|
provide the Purchaser with an update as to the status of the business of the Company during the Interim Period;
|
|
(ii)
|
facilitate compliance with the terms of this Agreement during the Interim Period;
|
|
(iii)
|
subject to Clause .4.1 0, develop a plan with respect to continuing the commercial relationships of the Company (including with respect to the
|
|
|
Material Supply Arrangements) beyond the Completion Date and creating new commercial relationships (if required) and which plan shall include:
|
|
(A)
|
extending the respective terms of the existing GEMA EM Contracts; and
|
|
(B)
|
discussions between the Purchaser and the Vendor relating to the future supply by the Company to the Purchaser of certain GEMA Products for resale in countries where the Purchaser is, as of the Execution Date, under contract with Affiliates of the Vendor to sell Mobil-branded lubricants with a view to concluding such discussions and reaching agreement on such future supply by the Completion Date;
|
|
(iv)
|
facilitate an orderly change of ownership at Completion: and
|
|
(c)
|
during the Interim Period, the Purchaser shall have the right to discuss the Company's business plan with the Company's management and the Vendor shall, upon three (3) days prior notice, provide the Purchaser with necessary access to the Company's management, provided that such Purchaser's right shall not unduly interfere with the business and operations of the Company.
|
|
(d)
|
the Vendor shall procure that subject to agreement on its terms and conditions the Lubricants Distribution Agreement is entered into by the parties thereto as soon possible following the Execution Date and, in any case, no later than at Completion.
|
5.5
|
During the period from the Execution Date to the earlier of (i) the Completion Date, and (ii) the date this Agreement is terminated in accordance with its terms,
|
|
(a)
|
the Vendor shall not and shall procure that the Company and their respective Affiliates, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants and other agents of the Company and the Vendor shall not take any action to, directly or indirectly, initiate or engage in discussions or negotiations with, or provide any information to, any Person, other than the Purchaser (and its· representatives), concerning any purchase of any equity securities of the Company or any merger, asset sale, recapitalisation or similar transaction involving the Company;
|
|
(b)
|
the Vendor shall not vote its equity securities in the Company in favour of any purchase of any share capital of the Company, or any merger, asset sale, recapitalisation or similar transaction involving the Company;
|
|
(c)
|
the Vendor shall notify the Purchaser as soon as practicable if any Person makes any proposal, offer, inquiry to, or contact with, the Vendor or the Company, as the case may be, with respect to paragraph (a) above and shall describe in reasonable detail the identity of any such Person and, the substance and material terms of any such contact and the material terms of any such proposal; and
|
|
(d)
|
the Vendor shall promptly enforce its rights (or procure that its applicable Affiliates to enforce their rights) under any confidentiality agreements specifically entered into with any Persons· (other than the Purchaser or its Affiliates) with respect to the potential purchase by such Person of the shares of the Company, including, to the extent permitted under such confidentiality agreements, by requesting that any such Persons return (or destroy, and certify such destruction) any confidential information regarding the Company that was provided to such Persons.
|
CLAUSE 6.
|
WARRANTIES AND UNDERTAKINGS
|
6.1
|
The Vendor warrants that:
|
|
(a)
|
it (i) is a duly organised and validly existing limited liability company established under the laws of England, and (ii) has full corporate and legal power and authority to enter into and perform its obligations under this Agreement and any other agreement which it is required to enter into hereunder;
|
|
(b)
|
the Company (i) is a duly organised and validly existing limited liability company established under the laws of England, and (ii) has full corporate and legal power and authority to own its own assets and carry on its business as presently conducted;
|
|
(c)
|
it has full legal and beneficial ownership of the Sale Shares being sold and transferred to the Purchaser pursuant to this Agreement and that the Sale Shares constitute the whole of the issued, allotted and fully paid up share capital of the Company;
|
|
(d)
|
it shall be entitled at the Completion Date to transfer the full legal and beneficial ownership of the Sale Shares free of Encumbrances to the Purchaser, subject to the terms of this Agreement;
|
|
(e)
|
there is no agreement, arrangement or understanding to create or give any Encumbrance of any nature whatsoever over or in respect of the Sale Shares;
|
|
(f)
|
nobody has the right to call for the allotment, issue, sale or transfer of any share or loan capital of the Company under any option or other agreement (including conversion rights and rights of pre-emption);
|
|
(g)
|
the execution of this Agreement has been duly and validly approved by the directors of the Vendor and all necessary corporate consents have been, or will be, obtained to enable it to perform its obligations under this Agreement;
|
|
(h)
|
this Agreement, assuming the due execution and delivery hereof by the Purchaser, has been duly executed and delivered by the Vendor and constitutes a legally binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms, except to the extent that such enforceability may be subject to applicable bankruptcy, insolvency, reorganisation, moratorium or similar laws affecting the enforcement of creditors' rights generally and to general equitable principles;
|
|
(i)
|
the execution, delivery and performance of this Agreement do not and will not result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, payment or acceleration) under, or result in the creation of any Encumbrances on any of the properties or assets of the Vendor or the Company under:
|
|
(i)
|
any provision of the certificate of incorporation or by-laws or the comparable organisational documents of the Vendor or the Company; or
|
|
(ii)
|
any Applicable Law binding upon the Vendor or the Company or by which any of their respective properties or assets may be bound; and
|
|
(j)
|
The Vendor has timely filed, caused to be timely filed or shall cause to be timely filed on behalf of the Company (taking into account any applicable extension of time within which to file) with the appropriate taxing authorities all Tax returns that are required to be filed by, or with respect to, the Company on or prior to the Completion Date, and all such Tax returns are or will be true, correct and complete in all respects. All Taxes due and payable (i) with respect to taxable periods or portions thereof prior to the Accounts Date, (ii) with respect to taxable periods or portions thereof after the Accounts Date but prior to the Completion Date relating to any activity outside of the ordinary course of business and (iii) so far as the Vendor is aware, with respect to taxable periods or portions thereof after the Accounts Date but prior to the Completion Date relating to any activity in the ordinary course of business, in each case, with respect to the income, assets and operations of the Company, have been timely paid in full (other than corporation tax instalments payments falling under the Vendor's group payment arrangement which will be allocated by the Vendor to the Company following Completion). So far as the Vendor is aware, all other Taxes not yet due and payable by the Company for all taxable years or other taxable periods or portions
|
|
|
thereof ending on or before the Accounts Date have been accrued in accordance with GAAP and have been identified on the Accounts prepared on a consistent basis in accordance with GAAP .
|
6.2
|
The Vendor further warrants that, so far as the Vendor is aware and except as disclosed to the Purchaser:
|
|
(a)
|
the Accounts have been prepared on a consistent basis in accordance with GAAP and
|
|
(i)
|
the balance sheet included in the Accounts fairly presents, in all material respects, the financial condition of the Company at the Accounts Date; and
|
|
(ii)
|
the profit and loss statement included in the Accounts fairly presents, in all material respects, the results of the operations and cash flows of the Company and the changes in its financial condition for the periods indicated;
|
|
(b)
|
since the Accounts Date, the Company has been managed and operated in the ordinary and usual course;
|
|
(c)
|
there is no event (other than general events of an economic, political, legal or regulatory nature that should reasonably be known to the Purchaser) that may reasonably be expected by the Vendor to have a material adverse economic impact on the situation of the Company during the Current Accounts Period; for the purposes of this Clause 6.2(c), an event shall be deemed to be material to the Company if it is reasonably expected by the Vendor to have an adverse impact on the Company exceeding £500,000;
|
|
(d)
|
the Company is not engaged in any material litigation (or series of related litigation) or other material proceedings or hearings which, if found against the Company, might reasonably be expected to have an adverse economic impact on the Company exceeding £500,000 in aggregate;
|
|
(e)
|
the Company does not have any claims, obligations, liabilities or indebtedness (whether absolute, accrued, contingent or otherwise) that would be required by GAAP to be set forth in the Accounts, except for (i) claims, obligations, liabilities or indebtedness set forth in the Accounts or specifically disclosed in the footnotes thereto, and (ii) accounts payable to trade creditors and accrued expenses incurred subsequent to the Accounts Date in the ordinary course of business consistent with past practice;
|
|
(f)
|
Schedule 6 sets forth a list of each of the 16 most significant contracts of the Company, measured by way of the aggregate annual amount of payments to or by the Company pursuant to each such contract (each contract a "Material Contract") and each Material Contract is in full force and effect and there exists no default or event of default by the Company or any other party to any such contract with respect to any material term or provision of any Material Contract;
|
|
(g)
|
the Company is in compliance in all material respects with all Applicable Laws;
|
|
(h)
|
there is no labour strike, dispute, slowdown or stoppage actually pending or threatened in writing against or involving the Company, no union is currently certified, and there is no union representation question and no union or other organisational activity existing or threatened with respect to the operations of the Company, and the Company has not experienced any material labour difficulty or work stoppage during the last three years, no arbitration proceeding arising out of or under any collective bargaining agreement is pending and no claim therefor has been asserted, and the Company is not subject to or bound by any collective bargaining or labour union agreement applicable to any Person employed by the Company and no collective bargaining or labour union agreement is currently being negotiated by the Company;
|
|
(i)
|
the Company (i) has not received notice of, or otherwise has not been the subject of, an audit or other examination of Taxes from the tax authorities of any nation, state or locality, (ii) has not received any written notices from any taxing authority relating to any issue which could affect the Tax liability of the Company, (iii) has not entered into (or has been requested to enter into) an agreement extending any statute of limitations relating to the payment or collection of Taxes of the Company that has not expired, and (iv) is not presently contesting the Tax liability of the Company before any court, tribunal or agency;
|
|
(j)
|
there are no tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any predecessor or affiliate thereof and any other party (including Vendor and any predecessors or affiliates thereof) under which the Purchaser or the Company could be liable for any Taxes or other claims of any party after Completion;
|
|
(k)
|
the Company has not been included in any "consolidated," "unitary", "group" or "combined" Tax return with respect to Taxes for any taxable period for which the statute of limitations has not expired;
|
|
(l)
|
the Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after Completion as a result of any accounting method change or agreement with a taxing authority executed on or prior to the Completion Date;
|
|
(m)
|
The Gravesend Site constitutes the only parcel of real property that is owned, used, leased, licensed or otherwise occupied or controlled by the Company in the conduct of its business and operations. The Company is the sole legal and beneficial owner of the Gravesend Site, and has good and marketable title to the Gravesend Site;
|
|
(n)
|
Schedule 1 sets forth a complete list of the principal Benefit Plans of the Company. The Vendor has made available to the Purchaser all material details of the Benefit Plans. Each Benefit Plan has been operated in all material respects in compliance with its terms; and
|
|
(o)
|
all amounts due and payable by the Company into the Defined Benefit Pension Scheme have been fully paid by the Company in accordance with the schedule of contributions other than the Final Contribution.
|
6.3
|
The Purchaser agrees that:
|
|
(a)
|
no warranty, assurance or other commitment by the Vendor is made nor shall be implied in relation to the Sale Shares or this Agreement beyond the Warranties expressly provided in Clauses 6.1 and 6.2; and
|
|
(b)
|
neither the Vendor nor any of its Affiliates makes or has made any representation, warranty assurance or other commitment to the Purchaser or to any of its representatives with respect to any projections, forecasts, estimates, plans or budgets of future revenue, expenses or expenditures, future results of operations, future cash flows or future financial condition of the Company (or any component thereof).
|
6.4
|
The Warranties are given once at the Execution Date and are repeated at the Completion Date, other than the Warranties at Clauses 6.2(f) and 6.2(h) which will be given once at the Execution Date.
|
6.5
|
Subject to Clauses 6.9 and 6.10, the Warranties and all other provisions of this Agreement insofar as the same shall not have been performed at Completion shall not be extinguished or affected by Completion, except by a specific and duly authorised written waiver or release by the Purchaser. Save in the case of fraud, the Vendor undertakes to the Purchaser not to make or pursue any claim against the Company or its officers, employees or agents in connection with assisting the Vendor in giving the Warranties and/or entering into this Agreement.
|
6.6
|
Each of the Warranties is to be construed as a separate and independent Warranty and is not to be limited or restricted by reference to, or inference from, the provisions of any other Warranty or anything else, whether in this Agreement or otherwise.
|
6.7
|
For the purposes of Clause 6.2, a matter shall be treated as being within the awareness of the Vendor if it was within the actual awareness of those employees of the Vendor or its Affiliates listed in Schedule 4 after making such enquiry and investigation as could reasonably be expected given the confidentiality restrictions on each respective employee.
|
6.8
|
The maximum aggregate liability of the Vendor:
|
|
(a)
|
in respect of all claims under the Warranties set out in Clause 6.1 shall be an amount equal to 100% of the Purchase Price; and
|
|
(b)
|
in respect of all claims under the Warranties set out in Clause 6.2, shall be an amount equal to 10% of the Purchase Price.
|
6.9
|
The Purchaser agrees that no Warranty claim shall be made against the Vendor:
|
|
(a)
|
in respect of any amount less than £100,000;
|
|
(b)
|
unless the aggregate value of Warranty claims totals at least £1,000,000 in which case all such duly notified claims, including claims previously notified, shall accrue against and be recoverable from the Vendor; and
|
|
(c)
|
which has not been notified in reasonable detail by the Purchaser to the Vendor on or before the Warranty Termination Date.
|
6.10
|
If it is found, on or before the Warranty Termination Date, that any of the Warranties made by the Vendor in this Agreement were in any material respect untrue, misleading, incorrect or unfulfilled, then:
|
|
(a)
|
the Purchaser shall deliver to the Vendor a notice in writing seeking to recover from the Vendor the amount of damages suffered;
|
|
(b)
|
the notice referred to in paragraph (a) shall
|
|
(i)
|
describe in reasonable detail the underlying facts (including, but not limited to, the amount of reasonably anticipated damage) of the claim for breach of Warranty to the extent then known; and
|
|
(ii)
|
shall be delivered to the Vendor within 30 Business Days after (A) the Purchaser actually became aware of the claim for breach of Warranty, or (B) receipt by the Purchaser of a notice of Claim made or threatened to be made by any third party or authority which may give rise to a claim for breach of Warranty.
|
6.11
|
The Purchaser shall have no Claim against the Vendor for any indirect or consequential losses (other than losses in relation to the engagement of advisers) or lost profits suffered by the Purchaser or its Affiliates (including the Company) for breach of warranty or otherwise.
|
6.12
|
The Purchaser acknowledges and agrees that:
|
|
(a)
|
the Vendor has made available to the Purchaser, for purposes of due diligence, the Confidential Information Memorandum and the Due Diligence Materials;
|
|
(b)
|
it has made its own inquiry and investigation into, and, based thereon, has formed an independent judgment concerning the Company, its activities and the Properties; and
|
|
(c)
|
the due diligence investigation undertaken by the Purchaser and its experts (including disclosure of the Confidential Information Memorandum and the Due Diligence Materials) shall be taken into account in determining whether there has been any breach of any of the Warranties, to the extent information relating to such breach or inaccuracy was made available prior to signature of this Agreement in the Confidential Information Memorandum or the Due Diligence Materials.
|
6.13
|
The Purchaser undertakes that prior to Completion neither it nor any of its Affiliates will enter into any agreement relating to the resale of the Sale Shares or the sale by the Company of any of the Company’s assets.
|
6.14
|
The Purchaser warrants that:
|
|
(a)
|
it is a corporation duly organised and validly existing under the laws of the country of its incorporation as referred to in this Agreement, with power and authority to enter into and perform its obligations under this Agreement;
|
|
(b)
|
the execution of this Agreement has been duly and validly approved by the directors of the Purchaser and all necessary corporate consents have been, or will be, obtained to enable it to perform its obligations under this Agreement;
|
|
(c)
|
this Agreement, assuming the due execution and delivery hereof by the Vendor, has been duly executed and delivered by the Purchaser and constitutes a legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except to the extent that such enforceability may be subject to applicable bankruptcy, insolvency, reorganisation, moratorium or similar laws affecting the enforcement of creditors’ rights generally and to general equitable principles;
|
|
(d)
|
save for the consent(s) required under Clause 4.1, all necessary consents have been, or will be, obtained to enable it to perform its obligations under this Agreement; and
|
|
(e)
|
the choice of the law of England to govern this Agreement is valid and would be recognised and given effect by the courts of the country of its incorporation.
|
6.15
|
The Purchaser Warranties are given once at the Execution Date and are repeated at the Completion Date.
|
6.16
|
Notwithstanding any other provision of this Agreement, the Purchaser acknowledges and agrees:
|
|
(a)
|
that the Property has been used for industrial purposes including processes relating to the manufacture, storage, distribution and marketing of petroleum and petroleum based products and other chemicals, and that the soil and sub-soil of the Property and land and water adjacent thereto and drains, sewers, pipes, water courses and water table at, under or in the vicinity of the Property may have been contaminated by oil or other Hazardous Substances;
|
|
(b)
|
that the Vendor gives no warranty or representation as to the state and condition of the Property or facilities, or land or water adjacent thereto, or their suitability for any future use;
|
|
(c)
|
that any obligation (whensoever arising) to investigate or to carry out remedial work on the soil, sub-soil, drains, sewers, pipes, water courses and water table at, under or adjacent to the Property (including in respect of ground water or any property in the vicinity to which any contamination may have spread from the Property) may give rise to an Environmental Liability of the Company and that neither the Vendor nor its Affiliates nor any of their officers, directors, managers, employees, agents or insurers shall have any liability in respect of the same including under this Agreement;
|
|
(d)
|
not to submit, and to procure that there are not submitted by any of the Purchaser's Affiliates (now or in the future) or by any other Person, to the Vendor or its Affiliates or their directors, managers, employees, agents or insurers any Claims relating in any way to any investigation or to the state and condition of any of the Property and drains, sewers, pipes, water courses and water table at, under or adjacent to the Property (including in respect of ground water or any property in the vicinity to which any contamination may have spread from the Property) against the Vendor or any of the Affiliates of the Vendor, or any of their officers, directors, managers, employees, agents or insurers;
|
|
(e)
|
that from the Completion Date no insurance cover will be provided to the Purchaser or the Company under any of the ExxonMobil Policies;
|
|
(f)
|
no Claim shall be made by or through the Purchaser or by any of the Purchaser's Affiliates under any of the ExxonMobil Policies provided by or for the benefit of any of the Affiliates of the Vendor; and
|
|
(g)
|
that, to the extent permitted by Applicable Law, it will procure that the Company shall not use or convey any Property to be used for residential, hospital or other health care, playground, school or other educational or agricultural uses unless the Property has been remediated to (i) the standards required by Applicable Law for such use or, (ii) in the absence of such standards, generally accepted risk based standards.
|
6.17
|
The Vendor agrees to procure that a relevant Affiliate will take part in discussions with the Purchaser and the Company within 90 days of the Completion Date relating to the licencing by such Affiliate of certain GEMA Products with a view to permitting (on terms and conditions to be agreed between the relevant parties) the future supply by the Company to the Vendor and/or Affiliates of the Vendor and/or distributors of the Vendor and/or distributors of Affiliates of the Vendor of such GEMA Products for resale in certain countries where the Purchaser is not, as of the Execution Date, under contract with Affiliates of the Vendor to sell Mobil-branded lubricants.
|
CLAUSE 7.
|
INDEMNITY
|
7.1
|
Subject to the provisions of Clause 14.1 and the following provisions of this Clause 7, the Purchaser shall indemnify, keep indemnified and hold harmless the Vendor, the Vendor's Affiliates and the officers, directors, managers and employees of the Vendor and its Affiliates (together, the “Indemnitees”) against any claim, liability or loss of whatever nature (including any legal costs relating thereto) arising directly or indirectly out of the Company’s ownership or operation of its businesses or of any of its assets and received or arising prior to, on or after the Completion Date.
|
7.2
|
Without prejudice to the generality of the provisions of Clause 7.1, the Purchaser shall indemnify, keep indemnified and hold harmless the Indemnitees from and against all Environmental Liabilities (including any legal costs relating thereto) arising directly or indirectly from, or in connection with, or as a result of any of the following:
|
|
(a)
|
any Environmental Matter or any Environmental Law relating in any way to the Property, or the activities of the Company, or any act or omission, neglect or default (whether before or after the date of this Agreement) of the Company, the Purchaser or any of the Purchaser's Affiliates relating to the Property, or any officer, director, manager, employee or agent thereof, or any person for whom such company is vicariously liable;
|
|
(b)
|
the carrying out, or failure to carry out of any investigation or remedial works in relation to Environmental Matters whether before or after the Execution Date; and
|
|
(c)
|
any claim made by or through the Purchaser, or the Company or any person subrogated to the Purchaser's rights, including its insurer, against any of the ExxonMobil Policies provided by or for the benefit of any of the Vendor and its Affiliates, including any claims for reinsurance, retrospective premium payments or prospective premium increases.
|
7.3
|
The Vendor shall inform the Purchaser in writing of any claim (together with full particulars in relation to each such claim, and related information as the Purchaser may reasonably request) by any third party which comes to the notice of the Vendor, or any
|
|
Affiliate of the Vendor, whereby it appears that the Purchaser is or might reasonably be considered to become liable under an Indemnity Claim (a “Third Party Claim”) within thirty days from the day on which such claim comes to the notice of the Vendor or Affiliate of the Vendor (as the case may be).
|
7.4
|
The Purchaser shall have conduct in relation to the legal defence of any Third Party Claim, except in circumstances where the Vendor reasonably believes that its interests or reputation is or could be compromised by such Third Party Claim in which case the Vendor shall have sole conduct in relation to such legal defence.
|
7.5
|
No indemnity given by the Purchaser or its Affiliates to the Indemnitees under this Agreement shall become effective unless and until Completion occurs.
|
7.6
|
The Indemnitees shall not be entitled to bring an Indemnity Claim:
|
|
(a)
|
which arises, in whole or in part, or is increased as a result of any fraudulent act or omission or fraudulent misrepresentation by the Vendor or any of its Affiliates, or by the officers, directors or executive, managerial, professional or technical employees of any of them; or
|
|
(b)
|
with respect to breaches of Warranties by the Vendor for which notice is given by the Purchaser on or before the Warranty Termination Date.
|
CLAUSE 8.
|
TRADEMARKS
|
8.1
|
The Purchaser shall procure that the Company shall debrand and phase out the use of any ExxonMobil Trademarks as soon as practicable after the Completion Date and shall in any event ensure that no ExxonMobil Trademark is used by the Company or any of its agents, customers, distributors or other resellers after a period of 30 days from the Completion Date, other than in relation to products sold or distributed under:
|
(i)
|
the Lubricants Distribution Agreement; and
|
(ii)
|
the GEMA EM Contracts,
|
8.2
|
The Purchaser agrees that all ExxonMobil Trademarks will remain the property of the Vendor and/or the Vendor's Affiliates.
|
8.3
|
The Purchaser shall indemnify, keep indemnified and hold harmless the Vendor and its Affiliates against any losses, costs, damages and expenses they incur or suffer as a result of the use of the ExxonMobil Trademarks by the Company after Completion.
|
CLAUSE 9.
|
PERSONNEL
|
9.1
|
The Parties recognise, as between them, that the change in ownership of the Company shall not release the Company from:
|
|
(a)
|
any of its obligations in relation to the continued employment of its Employees (including any Employees of the Company on secondment to another entity on the Completion Date), on their current terms and conditions; and
|
|
(b)
|
honouring its obligations under or in respect of any existing Benefit Plans,(with the exception of the Defined Benefit Pension Scheme) including obligations in relation to Employees and former Employees.
|
9.2
|
The Purchaser undertakes:
|
(a)
|
to ensure that:
|
|
(i)
|
all Employees will be treated in a professional and fair manner and that the employment terms and conditions (excluding pension benefits, in relation to which .the Purchaser will comply with paragraph 9.2(b)) of all Employees will be no less favourable than the employment terms and conditions of such Employees as at the Execution Date for at least the Initial Period; and
|
|
(ii)
|
the Company continues to apply in a professional and fair manner all employment policies, guidelines and programmes (including bonus schemes) which .apply to Employees as at the Execution Date and that any discretion reserved to the Company, in such policies, guidelines and programmes will be exercised in a manner consistent with the previous practice of the Company, for at least the Initial Period;
|
|
(b)
|
to offer to all Employees with effect on and from Completion membership of a scheme which is a registered pension scheme for the purposes of Chapter 2 of Part 4 of the Finance Act 2004. The rates of the Company's and Employees’ contributions to such scheme shall be determined by the Purchaser in accordance with its reasonable assessment of market practice, provided that:
|
|
(i)
|
the Company's aggregate contributions for each Employee during the Initial Period shall be no less than 15% of the relevant Employee's annual pensionable pay (including without limitation base pay and, where applicable, shift allowance, overtime and sales commission), subject to appropriate pro rata reduction where such Employee leaves service during the Initial Period; and
|
|
(ii)
|
the maximum monthly contribution that each Employee shall be required to make during the Initial Period shall be 6.5% of his or her monthly pensionable pay (although, for the avoidance of doubt, contributions in excess of 6.5% may be made by each Employee on a voluntary basis, but this shall not affect the contribution of 15% to be made by the Company);
|
|
(c)
|
in case during the Initial Period the Purchaser will need to implement a selection process for the purposes of redundancy, to ensure that Employees will be given no less favourable an opportunity in respect of and in comparison to any employees of the Purchaser and its Affiliates in the United Kingdom; and:
|
|
(d)
|
in case the Purchaser enters into any sale agreement(s) during the Initial Period with a third party, or parties, for the sale of some or all of the Property, business and/or the assets of the Company, (each a “Relevant Sale Agreement”) and such Relevant Sale Agreement would at its completion constitute a transfer of an undertaking to a third party either by virtue of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 or otherwise, to ensure that the Relevant Sale Agreement contains terms under which the relevant third party makes the· same undertakings to the Purchaser as are made by the Purchaser to the Vendor under this Clause 9.2 at least for the remainder of the Initial Period. In the case of Clause 9.2(b) only, and in the absence of an undertaking of the relevant third party to make payments pursuant to Clause 9.2(b)(i), the Purchaser may make a payment to the relevant defined contribution scheme prior to the completion of the Relevant Sale Agreement of an amount equivalent to the value of the payments owed under Clause 9.2(b)(i) for the remainder of the Initial Period.
|
9.3
|
Subject to Clause 9.1(b), the Purchaser undertakes to cause the Company to make payments when due arising from and after Completion for Benefits and for contributions due under Clause 9.2(b)(i) in respect of Employees.
|
9.4
|
The Purchaser undertakes to communicate its commitments relating to Clauses 9.1, 9.2 and 9.3 through a letter to all Employees no later than forty-five (45) days following signature of this Agreement, such letter to be approved in advance by Vendor.
|
9.5
|
The Purchaser acknowledges and agrees that the secondments of any employees of the Vendor or its Affiliates (other than the Company) who are at any time prior to the Completion Date on secondment to the Company shall cease at or before Completion.
|
9.6
|
The Purchaser undertakes to indemnify and keep the Vendor and its Affiliates indemnified from and against any claim, liability or loss of whatever nature (including reasonable and duly documented legal costs relating thereto) arising out of or in connection with any Benefits (other than in relation to the Defined Benefit Pension Scheme).
|
9.7
|
The Vendor undertakes to indemnify and keep the Purchaser and its Affiliates indemnified from and against any claim, liability or loss of whatever nature (including reasonable and duly documented legal costs relation thereto) arising out of or in connection with the Defined Benefit Pension Scheme, including without limitation any liability arising under any financial support direction or contribution notice issued by the Pensions Regulator.
|
9.8
|
The Purchaser shall inform the Vendor in writing of any claim (together with full particulars in relation to each such claim, and related information as the Vendor may reasonably request) by any third party which comes to the notice of the Purchaser, or any Affiliate of the Purchaser, whereby it appears that the Vendor is or might reasonably be considered to become liable under Clause 9.7 (a "Pension Claim") within 15 Business Days on and from the day on which such claim comes to the notice of the Purchaser or Affiliate of the Purchaser (as the case may be).
|
9.9
|
The Vendor shall have sole conduct in relation to the legal defence of any Pension Claim, except in circumstances where the Purchaser reasonably believes that its interests or reputation is or could be compromised by such Pension Claim in which case the Vendor shall use all reasonable endeavours to ensure the Purchaser's concerns are taken into account in relation to such legal defence.
|
9.10
|
Should the Purchaser or any of the Purchaser's Affiliates be required to announce the contemplated sale by the Vendor and purchase by the Purchaser of the Sale Shares (as contemplated in this Agreement) to their employees or employees' representative bodies, then the Purchaser shall agree with the Vendor on the timing of such announcement before such announcement is made, and take into account the Vendor's reasonable requests in relation to the form and content of such announcement.
|
9.11
|
For the avoidance of doubt, nothing in this Agreement shall restrict the Company before the Completion Date in informing or communicating with its employees regarding the change in the direct or indirect ownership of the Company as it shall think fit; provided, however, that any formal written communication with all employees shall be consulted with the transition committee.
|
9.12
|
The Purchaser agrees that, unless this Agreement is terminated pursuant to Clause 4.13, it shall not, and shall ensure that the Company shall not, for a period of three years from the Completion Date offer a contract of employment or otherwise attempt to recruit any employee of the Vendor or an Affiliate of the Vendor except with the express written permission of the Vendor.
|
9.13
|
The Vendor agrees that, unless this Agreement is terminated pursuant to Clause 4.13, it shall not, and shall ensure that its Affiliates shall not, for a period of three years from the Completion Date offer a contract of employment or otherwise attempt to recruit any employee of the Company except with the express written permission of the Purchaser.
|
CLAUSE 10.
|
INSURANCE - EXXONMOBIL POLICIES
|
10.1
|
The Vendor and the Purchaser acknowledge that ExxonMobil maintains a worldwide programme of property and liability insurance coverage for itself and its Affiliates, including the Vendor and the Company. This programme has been designed to achieve a coordinated risk management package for the entire ExxonMobil Group. The programme consists primarily of four types of insurance:
|
(a)
|
policies issued to Exxon Mobil Corporation or its predecessors;
|
|
(b)
|
policies issued directly to Affiliates by one of ExxonMobil's wholly-owned insurance companies, including without limitation Ancon Insurance Company, Inc., and Bluefield International Insurance Inc., (hereinafter collectively referred to as the "ExxonMobil Captive Insurers");
|
|
(c)
|
policies issued to Affiliates by locally admitted insurers which are reinsured by one of the ExxonMobil Captive Insurers; and
|
|
(d)
|
policies issued to Affiliates by locally admitted insurers which are self-insured by way of pre-funding premiums paid by the relevant Affiliate.
|
10.2
|
It is understood and agreed by the Purchaser that from and after the Completion Date:
|
|
(a)
|
no insurance coverage shall be provided under the ExxonMobil Policies to the Purchaser or its Affiliates, including the Company;
|
|
(b)
|
any and all policies insured or reinsured by any of the ExxonMobil Captive Insurers which, but for this provision would have insured the Company shall be deemed terminated, commuted and cancelled as to the Company;
|
|
(c)
|
any pre-paid premiums for insurance coverage under the ExxonMobil Policies from and after the Completion Date shall be treated pro-rata as Inter-Affiliate Receivables;
|
|
(d)
|
any unpaid premiums for insurance coverage provided to the Company until the Completion Date under the ExxonMobil Policies shall be treated pro-rata as Inter-Affiliate Payables; and
|
|
(e)
|
no claims regarding any matter whatsoever, whether or not arising from events occurring prior to the Completion Date, shall be made by the Purchaser or the Company against or with respect to any of the ExxonMobil Policies regardless of their date of issuance.
|
10.3
|
The Purchaser shall indemnify and defend the Vendor and its Affiliates against, and shall hold them harmless from, any claim made after the Completion Date against any of the ExxonMobil Policies by the Purchaser, the Company or any Person claiming to be subrogated to the Purchaser's or the Company's rights, including all costs and expenses (including attorneys' fees) related thereto. Such indemnity shall cover, without limitation, any claim by an insurer for reinsurance, retrospective premium payments or prospective premium increases attributable to any such claim.
|
10.4
|
Notwithstanding any provision of this Agreement to the contrary, the Purchaser’s insurance policy or policies shall: (a) cover the Vendor and Affiliates of the Vendor as additional insureds for liabilities arising from or assumed under this Agreement; and (b) be primary as to all other policies (including any deductibles or self-insured retentions). It is further agreed that the Purchaser and its insurer(s) providing coverage shall waive an rights of subrogation and contribution against the Vendor and Affiliates of the Vendor to the extent liabilities are assumed by the .Purchaser.
|
CLAUSE 11.
|
CONFIDENTIAL INFORMATION AND VENDOR'S TECHNICAL INFORMATION
|
11.1
|
The Purchaser shall treat this Agreement as Confidential Information as defined in the Confidentiality Agreement and shall not disclose its existence or its contents to any third party (except for Affiliates of the Purchaser and its or their respective professional advisers and auditors pursuant to the terms of the Confidentiality Agreement).
|
11.2
|
Subject to Clauses 4.16 and 9.10, no press release, announcement or statement about this Agreement or the subject matter of, or any matter referred to in, this Agreement shall be made or issued before, on or after the Completion Date by or on behalf of either Party without the prior written approval of the other Party, provided that:
|
|
(a)
|
nothing shall restrict the making by either Party (even in the absence of agreement by the other Party) of any statement or disclosure which may be required by Applicable Law, regulations (including regulations of a relevant stock exchange) and judicial decisions; and
|
|
(b)
|
in any event, the Party making such announcement under this Clause 11.2 shall use all commercially reasonable endeavours to agree the form of it with the other Party prior to its release.
|
11.3
|
The Vendor will withdraw from the Company by the Completion Date all Excluded Information.
|
11.4
|
The Purchaser shall, and shall procure that the Company shall, hold in confidence, and use only in connection with the Company’s business all of the Vendor's Technical Information.
|
11.5
|
The Purchaser shall, and shall procure that from the Completion Date the Company shall, hold in confidence, and not use for any purpose any and all technical information (other than the Vendor's Technical Information) in the possession of the Company as of Completion Date or received from the Vendor or Affiliates of the Vendor prior to Completion Date.
|
11.6
|
Nothing in this Clause 11 shall prevent the Company, subject to Clause 18 (Export Controls and Trade Sanctions):
|
|
(a)
|
from disclosing so much of the Vendor's Technical Information as is necessary to their auditors in connection with proper audit of the accounts of the Company, or
|
|
(b)
|
from disclosing so much of the Vendor's Technical Information as is necessary to enable their customers to use the Company’s products; or
|
|
(c)
|
from disclosing so much of the Vendor's Technical Information as is necessary under Applicable Law.
|
11.7
|
Nothing in this Clause 11 shall prevent the Company, subject to Clause 18 (Export Controls and Trade Sanctions), from disclosing so much of the Vendor's Technical Information as is necessary to permit the sale of shares or assets of the Company to potential purchaser(s) provided that such potential purchaser(s) are obligated in writing:
|
|
(a)
|
to hold such Vendor's Technical Information in confidence under secrecy obligations no less stringent than the ones hereunder; and
|
|
(b)
|
not to use such Vendor's Technical Information for any other purposes than the contemplated purchasing of shares or assets of the Company.
|
11.8
|
Subject to Clause 6.13, nothing in this Clause 11 shall prevent the Company, subject to Clause 18, from disclosing to their contractors and/or materials or component suppliers, so much of the Vendor's Technical Information as is necessary to enable the Company to continue its business operations as existing at Completion Date, provided that such contractors and/or material or component suppliers are obligated to the Company in writing:
|
|
(a)
|
to hold such Vendor's Technical Information in confidence under secrecy obligations no less stringent than the ones hereunder; and
|
|
(b)
|
not to use such Vendor's Technical Information except as authorised by the Company.
|
|
It is not intended by the foregoing that the Company obtain written commitments from materials or component suppliers in connection with standard items, e.g. equipment, or where only duty specifications are disclosed to said materials or components suppliers by the Company.
|
CLAUSE 12.
|
SOFTWARE
|
12.1
|
The Purchaser shall be responsible for ensuring that it and the Company each have in place licences for software on all workstations, laptops and servers owned or used by the Company from the Completion Date.
|
12.2
|
Where the basic operating licences for software on the Company’s workstations, laptops and servers are held in the name of the Vendor or an Affiliate of the Vendor which confers usage rights on the Company, the Vendor will notify the Purchaser of such licence agreements prior to the Completion Date and usage rights will be withdrawn by the Vendor as of the Completion Date with the Purchaser being responsible to provide new licences to ensure licence compliance following the Completion Date unless otherwise agreed.
|
12.3
|
Without prejudice to the generality of Clauses 12.1 and 12.2, the Purchaser acknowledges and agrees that the operating licence for SAP software is held in the name of the Vendor or an Affiliate of the Vendor and the Purchaser shall be responsible for providing a SAP licence in respect of all of the Company’s relevant SAP users from the Completion Date.
|
CLAUSE 13.
|
PURCHASE PRICE ADJUSTMENTS
|
13.1
|
The Purchase Price:
|
|
(a)
|
shall be decreased by the amount of the Down payment; and
|
|
(b)
|
shall be decreased by an amount equal to all Special Contributions (net of corporation tax relief thereon) made by the Company into the Defined Benefit Pension Scheme .in the Current Accounts Period.
|
13.2
|
If a dividend, special interest payment, profit remittance or capital reduction in respect of the Sale Shares is:
|
|
(a)
|
declared and paid during the Current Accounts Period, then the Purchase Price shall be reduced by the same amount of the dividend, special interest payment, profit remittance or capital reduction; and
|
|
(b)
|
declared but not paid by the Completion Date, it will be treated as an Inter-Affiliate Payable and dealt with in accordance with Clauses 2.2, 3.4 and 3.5 and the Purchase Price shall be reduced by the same amount of the dividend, special interest payment, profit remittance or capital reduction.
|
13.3
|
If the Vendor or any of its Affiliates should during the Current Accounts Period make a cash capital contribution which increases the net worth of the Company then the amount of the Purchase Price shall be increased by the amount of such cash capital contribution, provided that the Vendor shall on or prior to the Completion Date produce evidence to the Purchaser by way of verification of the payment of any such capital contribution.
|
CLAUSE 14.
|
TAXES AND REGISTRATION AND OTHER DUTIES
|
14.1
|
Subject to Clause 6.1(j), and Clause 6.2(i) to (l), the Purchaser undertakes to indemnify and keep Indemnified the Vendor (for itself and as trustee for each of the Affiliates of the Vendor and the officers, directors, managers and employees of the Vendor and of Affiliates of the Vendor) in so far as Taxes incident on legal entities are concerned, from and against all Tax Liabilities due from or in respect of the Company.
|
14.2
|
All sums payable by the Vendor or its Affiliates under this Agreement shall be net of any withholding Taxes. If the Vendor or its Affiliates are required by any Applicable Law to deduct Taxes from or in respect of any sum payable under this Agreement to the Company or the Purchaser, the amount paid shall be increased to the extent necessary to ensure that, after making all required deductions, the Company or the Purchaser receives an amount equal to the sum that would have been received had no such deductions been required. Should the Vendor or its Affiliates be required by Applicable Law to make such payments, such amounts shall be treated as having been paid to the Person in respect of which such deduction and withholding was made, and the Vendor or its Affiliates shall then timely pay the amount due to the relevant tax authority. The Vendor or its Affiliates shall deliver to the Purchaser a certified copy of the tax documents attesting to the collection of such withholding Tax within a 30 day period following the payment date. Should the Purchaser or the Company be held liable for a payment due by the Vendor or its Affiliates pursuant to this Clause 14.2, the Vendor shall defend, hold harmless and indemnify the Purchaser or the Company.
|
14.3
|
All sums payable by the Purchaser or the Company under this Agreement shall be net of any withholding Taxes. If the Purchaser or the Company are required by any Applicable Law to deduct Taxes from or in respect of any sum payable under this Agreement to the Vendor or Affiliates of the Vendor, the amount paid shall be increased to the extent necessary to ensure that, after making all required deductions, the Vendor or Affiliates of the Vendor receive an amount equal to the sum that would have been received had no such deductions been required. Should the Purchaser or the Company be required by Applicable Law to make such payments, such amounts shall be treated as having been paid to the Person in respect of which such deduction and withholding was made, and the Purchaser or the Company shall then pay the amount due to the relevant tax authority. The Purchaser or the Company shall deliver to the Vendor or Affiliates of the Vendor a certified copy of the tax documents attesting to the collection of such withholding Tax within a 30 day period following the payment date. Should the Vendor or Affiliates of the Vendor be held liable for a payment due by the Purchaser or the Company pursuant to this Clause 14.3, the Purchaser shall defend, hold harmless and indemnify the Vendor or Affiliates of the Vendor.
|
14.4
|
The Purchaser agrees that all transactions-related registration taxes and stamp duties and other transfer taxes shall be payable or otherwise borne by the Purchaser.
|
14.5
|
The Purchaser acknowledges and agrees that the Vendor and certain Affiliates of the Vendor may require access after the Completion Date to documents of the Company for the purpose of responding to official demands made by authorities of the United States of America or of the United Kingdom. For the purpose of ensuring that the Vendor and Affiliates of the Vendor can satisfy those requirements, the Purchaser undertakes, upon written request of the Vendor, at the Vendor's cost and expense (other than immaterial internal administrative or service costs) to make available to the Vendor and Affiliates of the Vendor those data and or documents held by the Company at the Completion Date. Nothing in this provision shall prevent the Company from operating in accordance with any policy or practice of the Company with regards to the retention of documents, except that financial records of the Company pertaining to the period from 1 January 2001 up to the Completion Date shall be retained for a minimum period of five years following the Completion Date.
|
14.6
|
The assistance obligations set forth in Clause 14.5 shall be timely fulfilled by the Purchaser but should not cause disruption to its normal business activities.
|
CLAUSE 15.
|
COSTS
|
CLAUSE 16.
|
APPLICABLE LAW AND DISPUTE RESOLUTION
|
16.1
|
This Agreement (together with all documents to be entered into pursuant to it which are not expressed to be governed by another law) shall be governed by, and construed and take effect in accordance with the laws of England. The UN Convention on the International Sale of Goods shall not be applicable.
|
16.2
|
Any dispute, controversy or claim arising out of or relating to this Agreement, including but not limited to its performance or the breach, termination or invalidity thereof as well as the pre- and post- contractual obligations, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators, even if the dispute, controversy or claim is based on other legal grounds than the Agreement.
|
16.3
|
The seat of arbitration shall be London, the language of the arbitration shall be English.
|
16.4
|
It is not incompatible with this arbitration agreement for a court to grant, before or during arbitral proceedings, an interim measure of protection relating to the subject-matter of the arbitration upon request of a Party.
|
CLAUSE 17.
|
BUSINESS ETHICS
|
17.1
|
For purposes of this Clause 17, "Official" means and includes:
|
|
(a)
|
any officer or employee of any government or any department, agency or instrumentality (i.e., any legal entity controlled by a government) thereof, or any person acting in an official capacity on behalf of any such government, department, agency or instrumentality;
|
(b)
|
any political party;
|
(c)
|
any official of a political party;
|
(d)
|
any candidate for political office; and/or
|
|
(e)
|
any officer or employee of a public international organisation (including without limitation, the United Nations, IMF, World Bank).
|
17.2
|
Each of the Parties represents that it has not offered, paid, promised to pay, authorised the payment of, or transferred, money or anything of value to an Official to secure any improper advantage or benefit in relation to the matters contemplated by this Agreement, either directly or indirectly through a third party.
|
17.3
|
In recognition of the principles of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions which entered into force on 15 February 1999, the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act 2010, each of the Parties further represents and agrees that it will not, directly or indirectly, in connection with this Agreement or its performance thereunder, offer, pay, promise to pay, or authorize the giving of money or anything of value to an Official, or to any other person while knowing or being to the knowledge of the Vendor of a high probability that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly to an Official, for the purpose of influencing the act, decision or omission of such Official with regard to any matters related to this Agreement.
|
17.4
|
The Purchaser represents that, except as it has already disclosed to the Vendor, no Official or close relative of an Official has any direct or indirect ownership or other legal or beneficial interest in the Purchaser or any of its Affiliates (other than through ownership of publicly traded securities that is not sufficient to constitute a controlling interest), or in the contractual relationship established by this Agreement, and that no such Official serves as an officer, director, manager or employee of the Purchaser. This
|
|
representation shall be continuing throughout until the Completion Date. The Purchaser agrees to notify the Vendor promptly and in writing of any changes between now and the Completion Date in its officers, directors, managers or employees or in the direct or indirect ownership in it or its Affiliates that would be inconsistent with the above representations.
|
17.5
|
The Vendor and the Purchaser agree that should the Vendor notify the Purchaser of any concern that there has been a breach by the Purchaser of the provisions of this Clause 17, the Purchaser shall co-operate in good faith with the Vendor in determining whether such a breach has occurred and if the Vendor determines in its reasonable opinion that the breach is a material breach it may elect to treat the breach as a repudiation of this Agreement by the Purchaser.
|
CLAUSE 18.
|
EXPORT CONTROLS AND TRADE SANCTIONS
|
18.1
|
The Purchaser acknowledges that technology, software, services, and commodities provided to the Company by the Vendor or its Affiliates (or products or technology derived from them) may be subject to US laws, regulations or requirements restricting their export, re-export, transfer or release to certain entities or destinations, including to persons within the Company, the Purchaser or its Affiliates or to unrelated third parties.
|
18.2
|
To the extent applicable to the Company or the Purchaser or the subject technology, software, services, commodities or any product that the Company or the Purchaser creates with US-origin content that is supplied by the Vendor or its Affiliates, the Purchaser shall act, and shall cause the Company to act, in accordance with all US export control and economic sanctions laws, regulations, and requirements.
|
18.3
|
The Purchaser and its Affiliates shall refrain from acting in a manner that would have the effect of causing the Vendor or its Affiliates to violate any such laws, regulations or requirements.
|
18.4
|
The Vendor and the Purchaser agree that, should the Vendor notify the Purchaser that the Vendor has knowledge or reason to believe that the Purchaser has acted or intends to act in a manner in connection with the Transaction that could have the effect of causing the Vendor or its Affiliates to be in violation of US export controls or trade sanctions laws, regulations or requirements, the Purchaser shall co-operate in good faith with the Vendor in determining whether such a breach has occurred or is planned to occur and if the Vendor determines in its reasonable opinion that the breach is a material breach it may elect to treat the breach as a repudiation of this Agreement by the Purchaser.
|
CLAUSE 19.
|
ENTIRE AGREEMENT
|
19.1
|
This Agreement (together with any documents referred to herein) contains the entire agreement and understanding of the Parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement (and any such document).
|
|
(a)
|
it does not enter into this Agreement and the documents referred to herein on the basis of and does not rely, and has not relied, upon any statement or representation or warranty or other provision (in any case whether oral, written, express or implied) made, given or agreed to by any Person (whether a Party to this Agreement or not) except those expressly set out or referred to in this Agreement and the documents referred to herein, and the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under this Agreement; and
|
|
(b)
|
this Clause 19.2 shall not apply to any statement, representation or warranty made fraudulently or to any provision of this Agreement which was induced by, or otherwise entered into as a result of, fraud, for which the remedies shall be all those available under the law governing this Agreement.
|
CLAUSE 20.
|
ASSIGNMENT
|
CLAUSE 21.
|
TERMINATION
|
21.1
|
such breach is not curable or, if curable, is not cured by earlier of (i) the 30th day after written notice thereof is given by the other Party, and (ii) the day that is five Business Days prior to the Longstop Date; and
|
21.2
|
the Party seeking to terminate this Agreement is not itself in material breach of this Agreement.
|
CLAUSE 22.
|
NOTIFICATIONS
|
22.1
|
Any notification required or permitted to be given under this Agreement (a “Notice”) shall be given in writing and under appropriate confidential cover.
|
22.2
|
The Notice shall be delivered personally or sent by pre-paid registered airmail, return receipt requested, or by fax to the Party due to receive such notice at the following address (or at such other address as may be notified in writing by the relevant Party to the other):
|
|
The Vendor:
|
Address:
|
ExxonMobil House
|
Telephone:
|
+44 (0)1372 225352
|
Fax:·
|
+44 (0)1372 222560
|
Address:
|
Avenida Juscelino Kubitscheck, 1327, 4° andar,
|
Telephone:
|
+55 11 3897 9797
|
Fax:
|
+55 11 38979799
|
22.3
|
Any notice delivered personally shall be deemed to be received when delivered. Any notice sent by pre-paid express courier such as DHL or Federal Express shall be deemed (in the absence of evidence of earlier receipt) to be received 96 hours after dispatch. In proving the time of dispatch it shall be sufficient to show that the envelope containing such notice was properly addressed, pre-paid and delivered to the express courier. Any notice by fax shall be deemed to be received at the moment it is sent, if there is hard copy confirmation by the fax machine that the fax was transmitted satisfactorily and provided that the sender can show that it has sought and received confirmation (by electronic mail or by fax) that the original fax notice has been received and printed out in full at the correct destination under Clause 22.2).
|
CLAUSE 23.
|
VARIATIONS
|
CLAUSE 24.
|
FURTHER ASSURANCE
|
24.1
|
Prior to the Completion Date, the Parties shall take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable (subject to any Applicable Law) to consummate the Transaction in accordance with its terms and as contemplated by this Agreement and any other transaction documents, if any, as promptly as practicable, including the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to give full effect to and fully carry out the purposes of, this Agreement and the other Transaction documents, if any.
|
24.2
|
The Parties shall from time to time and at their own respective cost do, execute and deliver or procure to be done, executed and delivered all such further acts, documents and things required by, and in a form satisfactory to the Parties to give full effect to this Agreement and the rights, powers and remedies under this Agreement.
|
CLAUSE 25.
|
REMEDIES AND WAIVERS
|
25.1
|
No waiver of any right under this Agreement shall be effective unless in writing. Unless expressly stated otherwise a waiver shall be effective only in the circumstances for which it is given.
|
25.2
|
No delay or omission by any Party in exercising any right or remedy provided by law or under this Agreement shall constitute a waiver of such right or remedy.
|
25.3
|
The single or partial exercise of a right or remedy under this Agreement shall not preclude any other nor restrict any further exercise of any such right or remedy.
|
25.4
|
Without limiting the Parties’ rights under this Clause 25, the rights and remedies provided in this Agreement are cumulative and do not exclude any other rights or remedies provided by Applicable Law (including, without limitation, any remedies at law or in equity), provided however, any limitations set forth in this Agreement with respect to the liability of either Party and/or exclusion of other rights or remedies provided by Applicable Law (including, without limitation, any remedies at law or in equity) shall be equally applicable to all the relevant rights and remedies provided under this Agreement and all other available rights and remedies provided by applicable Legislation. There is no right to set-off.
|
CLAUSE 26.
|
THIRD PARTY BENEFICIARIES
|
CLAUSE 27.
|
EFFECT OF COMPLETION
|
27.1
|
The provisions of this Agreement which remain to be performed following the Completion Date shall continue in full force and effect notwithstanding Completion.
|
27.2
|
For the avoidance of doubt
|
|
(a)
|
any covenant, undertaking or agreement of the Parties that was to be performed at or prior to the Completion Date and was not duly performed in accordance with this Agreement shall, unless such non-performance was waived in writing by the Party entitled to the benefit of such covenant, undertaking or agreement, survive Completion until the date that is one year after the Completion Date;
|
|
(b)
|
any covenant, undertaking or agreement of the Parties that by its terms is to be performed after the Completion Date shall survive the Completion Date until such covenant shall either have been duly performed in accordance with the terms of this Agreement or formally waived in writing; and
|
|
(c)
|
the Warranties shall survive as provided in Clause 6.
|
CLAUSE 28.
|
SEVERABILITY
|
VENDOR
|
PURCHASER
|
|
Signature:
/s/ Dr. KJ Dickens
|
Signature:
/s/ Renato Aparecido Fontana
|
|
Name: Dr. KJ Dickens
|
Name: Renato Aparecido Fontana
|
|
Title: Executive Director
Fuels Marketing
UK + Ireland
|
Title: Lubrificantes Director
|
Clause
|
Page
|
|
1.
|
SALE AND PURCHASE
|
2
|
2.
|
PRICE
|
2
|
3.
|
CONDITIONS TO CLOSING
|
2
|
4.
|
REGULATORY OBLIGATIONS
|
3
|
5.
|
NO LEAKAGE COVENANT
|
5
|
6.
|
PRE-CLOSING UNDERTAKINGS
|
5
|
7.
|
CLOSING
|
6
|
8.
|
INTEGRAL WARRANTIES, BG WARRANTIES AND BG GUARANTOR WARRANTIES
|
9 |
9.
|
PURCHASER WARRANTIES AND UNDERTAKINGS
|
10
|
10.
|
BG GUARANTOR GUARANTEE
|
10
|
11.
|
PURCHASER GUARANTOR GUARANTEE
|
11
|
12.
|
CONDUCT OF PURCHASER CLAIMS
|
12
|
13.
|
INDEMNITY
|
13
|
14.
|
TAX
|
14
|
15.
|
UNDERTAKINGS AND SELLER LIABILITY
|
14
|
16.
|
RESTRICTIVE COVENANT
|
15
|
17.
|
NO RIGHTS OF RESCISSION OR TERMINATION
|
15
|
18.
|
INFORMATION, RECORDS AND ASSISTANCE POST CLOSING
|
15
|
19.
|
PAYMENTS
|
15
|
20.
|
ANNOUNCEMENTS
|
17
|
21.
|
CONFIDENTIALITY
|
17
|
22.
|
ASSIGNMENT
|
19
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23.
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FURTHER ASSURANCES
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19
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24.
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COSTS
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19
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25.
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NOTICES
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20
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26.
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WHOLE AGREEMENT
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22
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27.
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WAIVERS, RIGHTS AND REMEDIES
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22
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28.
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COUNTERPARTS
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23
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29.
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VARIATIONS
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23
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30.
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INVALIDITY
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23
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32.
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THIRD PARTY ENFORCEMENT RIGHTS
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23
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31.
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GOVERNING LAW AND ARBITRATION
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23
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SCHEDULE 1.
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DETAILS OF COMGÁS
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26
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SCHEDULE 2.
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INTEGRAL WARRANTIES, BG WARRANTIES AND BG GUARANTOR WARRANTIES
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27
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PART A: |
PART A: INTEGRAL WARRANTIES
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27 |
PART B: |
PART B: BG WARRANTIES
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38 |
PART C: |
PART C: BG GUARANTOR WARRANTIES
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SCHEDULE 3.
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LIMITATIONS ON LIABILITY
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40
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SCHEDULE 4.
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PURCHASER WARRANTIES AND PURCHASER GUARANTOR WARRANTIES
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44
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PART A:
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PURCHASER WARRANTIES
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44
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PART B:
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PURCHASER GUARANTOR WARRANTIES
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45
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SCHEDULE 5.
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CLOSING ARRANGEMENTS
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46
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PART A:
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BG OBLIGATIONS
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46
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PART B:
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PURCHASER OBLIGATIONS
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47
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PART B:
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GENERAL
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47
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SCHEDULE 6.
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RESTRICTED ACTIONS
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49
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SCHEDULE 7.
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DEFINITIONS AND INTERPRETATION
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51
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AGREED FORM DOCUMENTS REFERRED TO IN THIS AGREEMENT
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Description
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Clause/Schedule
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ARSESP submission
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Clause 6.10
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Antitrust Filing
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Clause 4.1
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Proposed resolutions of the Comgás shareholders
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Clause 6.10
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Announcements
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Clause 10
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Agreement Terminating the Commercial Services Agreement
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Schedule 5
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Deed of Adherence to the Concession Agree
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Schedule 5
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Tax Deed
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Schedule 5
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Letter of resignation from BG appointed Comgás director Schedule
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Schedule 5
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Data Room Index
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Schedule 7
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1.
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INTEGRAL INVESTMENTS B.V., a limited liability company incorporated under the laws of The Netherlands, registered with the Commercial Register of the Dutch Chamber of Commerce with registered number 24295655, having its official seat in Rotterdam, The Netherlands and its place of business at Wilhelminaplein 14, 3072 DE Rotterdam, The Netherlands (the Seller);
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2.
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BG GAS SÃO PAULO INVESTMENTS B.V., a limited liability company incorporated under the laws of The Netherlands, registered with the Commercial Register of the Dutch Chamber of Commerce with registered number 24301034, having its official seat in Rotterdam, The Netherlands and its place of business at Wilhelminaplein 14, 3072 DE Rotterdam, The Netherlands (BG);
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3.
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BG ENERGY HOLDINGS LIMITED, a limited liability company incorporated under the laws of England with registered number 03763515, having its registered address at 100 Thames Valley Park Drive, Reading, Berkshire, RG6 1PT, United Kingdom (the BG Guarantor);
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4.
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PROVENCE PARTICIPAÇÕES S.A., a sociedade anônima incorporated under the laws of Brazil, registered with the Brazilian Federal Taxpayers’ Registry (CNPJ/MF) under no. 12.623.886/0001-09, having its place of business at Avenida Presidente Juscelino Kubitschek, 1327, 4° andar, sala 16, CEP 04543-011, Sao Paulo, SP, Brazil (the Purchaser); and
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5.
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COSAN S.A. INDÚSTRIA E COMÉRCIO, a sociedade anônima incorporated under the laws of Brazil, registered with Brazilian Federal Taxpayers’ Registry (CNPJ/MF) under no. 50.746.577/0001-15, having its place of business at Avenida Presidente Juscelino Kubitschek, 1327, 4° andar, sala 01, CEP 04543-011, Sao Paulo, SP, Brazil (the Purchaser Guarantor),
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(A)
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The Seller is jointly owned at the date of this Agreement by BG and Shell.
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(B)
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The Seller and BG propose respectively to sell, and the Purchaser proposes to buy, the Shares and BG Shares on the terms of this Agreement.
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(C)
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On 2 May 2012, BG and the Purchaser Guarantor entered into a conditional memorandum of understanding in respect of the Proposed Transaction (the MOU) and the conditions set out in clause 2.1 of the MOU have now been satisfied.
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(D)
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Words and expressions used in this Agreement shall be interpreted in accordance with Schedule 7.
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1.1
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The Seller shall sell (and BG shall procure that the Seller shall sell) with Full Title Guarantee and free from any Third Party Rights, and the Purchaser shall purchase, the Shares with effect from Closing with all rights then attaching to them including the right to receive all distributions and dividends declared, paid or made in respect of the Shares after Closing. The sale and purchase of the Shares shall be on the terms set out in this Agreement.
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1.2
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BG shall sell with Full Title Guarantee and free from any Third Party Rights, and the Purchaser shall purchase, the BG Shares with effect from Closing with all rights then attaching to them including the right to receive all distributions and dividends declared, paid or made in respect of the BG Shares after Closing. The sale and purchase of the BG Shares shall be on the terms set out in this Agreement. The price for the BG Shares shall be R$2,362.50. The provisions of clauses 2.3 and 2.4 shall apply to the sale and purchase of the BG Shares, mutatis mutandis.
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1.3
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Conditional upon and with effect from Closing BG hereby irrevocably and unconditionally waives all rights over, or in relation to, any and all of the Shares (including all rights of pre-emption, tag-along rights and other restrictions on the transfer of the Shares) which may have been conferred under the Integral Shareholders’ Agreement, the Comgás Shareholders' Agreement, the Comgás Articles or otherwise, whether arising, before or after Closing.
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1.4
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Conditional upon and with effect from Closing, BG hereby irrevocably and unconditionally waives, and will procure that its Affiliates shall irrevocably and unconditionally waive, any rights and claims (current, future, actual or contingent) it may have against Comgás under or in connection with the Comgás Shareholders’ Agreement or the Comgás Articles or otherwise.
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2.1
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The price for the Shares (the Price) shall be:
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(a)
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the Initial Price; plus
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(b)
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the Shareholder Proportion of any Capital Contribution Amounts; less
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(c)
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the Shareholder Proportion of any Dividend Amounts.
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2.2
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Without prejudice to clause 6.1, BG shall notify the Purchaser in writing at least 5 Business Days prior to Closing of the Capital Contribution Amounts and the Dividend Amounts.
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2.3
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At Closing, subject to clause 2.4 the Purchaser shall pay the Seller (to such bank account as the Seller may nominate for the purpose at least 5 Business Days prior to Closing) a sum in US dollars equal to the Price divided by the PT AX Ask Rate published by BACEN on the second Business Day prior to the Closing Date (the Dollar Price Equivalent) and BG and the Seller acknowledge that such a payment shall fully discharge and satisfy the Purchaser's obligation to pay the Price on Closing.
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2.4
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The parties acknowledge that withholding is required under Brazilian law to be made on account of Brazilian tax in respect of the Seller's capital gain arising on disposal of the Shares, and in relation to such, withholding the parties agree as follows:
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(a)
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the total amount required to be withheld from payment of the Price shall be calculated by BG as 15 per cent. of the capital gain arising to the Seller on disposal of the Shares by reference to the excess of the Price over the acquisition cost in respect of the Shares that is registered with the Brazilian Central Bank;
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(b)
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BG shall notify the Purchaser in writing immediately prior to Closing of the amount calculated in accordance with clause 2.4(a) above in Brazilian Reais that is required to be withheld from payment of the Price at Closing;
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(c)
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the Purchaser shall withhold from payment of the Price at Closing the amount notified in accordance with clause 2.4(b) above and shall pay such amount withheld to the Federal Revenue of Brazil within the time period prescribed by law; and
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(d)
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the Purchaser shall as soon as reasonably practicable (and in any event within 20 days) after payment of the Price at Closing provide evidence in a form reasonably satisfactory to the Seller that the amount notified in accordance with clause 2.4(b) has been paid to the Federal Revenue of Brazil.
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3.1
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Closing shall be conditional on the following Conditions having been fulfilled or waived in accordance with this Agreement:
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(a)
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the proposed transfer of the Shares to the Purchaser on the terms of this Agreement and the proposed encumbering by the Purchaser post-Closing of the Shares to a third party bank having been approved in writing by the ARSESP in form and substance satisfactory to the Purchaser (acting reasonably); and
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(b)
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no Material Adverse Change having arisen or occurred.
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The Condition in clause 3.1(a) is referred to as the Purchaser Condition.
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Purchaser Condition
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3.2
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The Purchaser shall, at its own cost, use all reasonable efforts to ensure that the Purchaser Condition is fulfilled as soon as reasonably practicable after the date of this Agreement. The Purchaser shall be responsible for satisfying the Purchaser Condition (including making a submission in the Agreed Form within 15 Business Days after the date of this Agreement). The Purchaser shall for this purpose, subject to clause 3.4:
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(a)
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promptly provide (subject to reasonable consultation with BG in advance) all information which is reasonably requested or required by the ARSESP and promptly notify BG and the Seller (and provide copies or, in the case of non-written communications, details) of all substantive direct and
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indirect communications with the ARSESP relating to the satisfaction of the Purchaser Condition (including all submissions, notifications and filings);
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(b)
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to the extent in each case permitted and reasonably practicable, allow persons nominated by BG or Comgás to attend all substantive meetings and substantive discussions with the ARSESP (or its representatives, advisers or agents) relating to satisfaction of the Purchaser Condition; and
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(c)
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regularly review with BG (and its advisers) the progress of notifications, filings and discussions with the ARSESP (or its representatives, advisers or agents) and, in particular, promptly disclose to BG (or its advisers) anything of which the Purchaser is aware which will or may prevent the Purchaser Condition from being satisfied in a timely manner (and, in any event, before the Longstop Date).
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3.3
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Subject to clause 3.4, BG shall at its own cost for the purpose of satisfying the Purchaser Condition:
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(a)
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use all reasonable efforts, and procure that the Seller uses all reasonable efforts, to cooperate with the Purchaser in satisfying the Purchaser Condition in accordance with clause 3.2; and
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(b)
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provide, and procure that the Seller and Comgás provide, the ARSESP and the Purchaser with any information, documents and assistance reasonably required for the purpose of making any submissions, notification and filings required to be made to the ARSESP.
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3.4
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Unless required in order to satisfy the Purchaser Condition or the Antitrust Approval, neither BG nor the Purchaser shall be obliged to disclose to the other or any of its advisers any confidential or financial information subject to confidentiality restrictions regarding the BG Group or the Purchaser Group (as applicable), provided that the party riot disclosing such information acts reasonably in redacting any such confidential or financial information and provides such redacted material to the other party.
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General
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3.5
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The Purchaser Condition may only be waived by the written agreement of BG and the Purchaser. The Condition in clause 3.1(b) may only be waived by the Purchaser.
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3.6
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BG warrants and undertakes that all actions taken or to be taken in connection with clauses 3 and 4 and the fulfillment of the Conditions by any member of the BG Group (and, up to Closing, the Seller and Comgás) have been and will continue to be in compliance with applicable Anti-Bribery Laws.
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3.7
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The Purchaser warrants and undertakes that all actions taken or to be taken in connection with clause 3 and 4 and the fulfillment of the Conditions by any member of the Purchaser Group have been and will continue to be in compliance with applicable Anti-Bribery Laws.
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3.8
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BG and the Purchaser shall each notify the other promptly upon becoming aware that the Purchaser Condition has been fulfilled. The first Business Day on or by which the Purchaser Condition has been fulfilled (or waived in accordance with clause 3.5) is the Unconditional Date.
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3.9
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If:
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(a)
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the Unconditional Date has not occurred on or before the Longstop Date, this Agreement (other than the Surviving Provisions) shall automatically terminate; or
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(b)
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a Material Adverse Change has arisen or occurred at any time prior to Closing, the Purchaser may, by written notice to BG, terminate this Agreement (other than the Surviving Provisions).
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Upon any such termination, none of the parties (nor any of their Affiliates) shall have any claim under this Agreement of any nature whatsoever against any other party (or any of their Affiliates) except in respect of any rights and liabilities which have accrued before termination or under any of the Surviving Provisions.
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Antitrust Approval
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4.1
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BG and the Purchaser shall, as soon as practicable after the date of this Agreement (and in any event within 15 business days in Brazil), jointly submit, the Antitrust Filing to CADE as necessary to obtain antitrust approval for the Proposed Transaction on terms reasonably satisfactory to the Purchaser (acting reasonably) (the Antitrust Approval).
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4.2 For this purpose, subject to clause 3.4, the Purchaser shall prepare, BG shall review and BG and the Purchaser shall cooperate to make the appropriate submissions, notifications and filings with CADE and they shall each: (i) provide the other and CADE with any necessary information reasonably required for the purpose of making any submissions, notifications and filings; (ii) keep the other informed of any substantive direct- or indirect communication (whether written or oral) with CADE; (iii) take into account any reasonable comments made by the other; and (iv) regularly review with the other the progress of notifications, filings or discussions.
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4.3
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Closing shall not be delayed by the failure to have obtained the Antitrust Approval by the Closing Date.
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4.4
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All third party costs and expenses associated with obtaining the Antitrust Approval shall be borne by the Purchaser save that each party shall bear all the costs of its own legal counsel and other advisers.
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Mandatory Tender Offer
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4.5
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The Purchaser acknowledges that, following Closing, it shall be required to make a mandatory tender offer for certain of the voting shares of Comgás in accordance with the provisions of Section 254A of Brazilian Law 6404/76.
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5.1
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BG undertakes to the Purchaser that if, during the period from the Locked Box Date until the Closing Date, any Leakage other than Permitted Leakage has occurred or will occur, then BG shall within 5 Business Days of written demand by the Purchaser, pay to the Purchaser an amount in cash (in the same currency as the Leakage) equal to the amount of such Leakage.
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5.2
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BG shall notify the Purchaser promptly upon becoming aware of any matter, fact or circumstance which is or could reasonably be expected to constitute Leakage.
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5.3
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Neither BG nor the BG Guarantor shall be liable for any claim for breach of or in respect of this clause 5 unless BG receives written notice of such claim prior to the date that is 9 months after the Closing Date.
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Conduct of Business
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6.1
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Subject to clause 6.2, BG shall, and shall procure that its Affiliates and the Seller shall, take all actions within their respective power to procure that, during the period from the date of this Agreement to Closing, Comgás shall continue to carry on business in the normal course in compliance with all applicable Anti-Bribery Laws and material compliance with all other laws and regulations applicable to it and, subject thereto, in substantially the same manner as its business has been carried on before the date of this Agreement, except in each case with the prior written consent of the Purchaser. Without limitation to the generality of the foregoing, BG shall (except in each case with the prior written consent of the Purchaser):
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(a)
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procure that:
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(i)
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the Seller continues to act as a non-operational holding company that does not undertake any trading activities; and
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(ii)
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no matters are undertaken by the Seller that would require a waiver, consent or approval from Shell under the Integral Shareholders' Agreement (save for those disclosed in the Disclosure Letter);
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(b)
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procure that no Restricted Actions are undertaken by Comgás or approved by the Seller;
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(c)
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procure that Comgás shall not terminate the employment of any Senior Employee other than for just cause or employ any additional person who would be deemed a Senior Employee or hire any additional person who would become a Senior Employee;
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(d)
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not, and shall procure that the Seller shall not, dispose of any interest in the Shares or any of them or grant any Third Party Right over the Shares or any of them;
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(e)
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not dispose of any interest in the BG Shares or any of them or grant any Third Party Right over the BG Shares or any of them;
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(f)
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not breach the terms of the Comgás Shareholders' Agreement or of the Integral Shareholders' Agreement; and
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(g)
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not agree to any amendment to the terms of the Comgás Shareholders’ Agreement or of the Integral Shareholders' Agreement.
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6.2
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Clause 6.1 shall not operate so as to restrict or prevent:
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(a)
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any matter required to be undertaken to ensure compliance with applicable law;
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(b)
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the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by Comgás in good faith and in the ordinary course of business prior to the date of this Agreement;
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(c) any matter specifically undertaken in order to comply with:
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(i)
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the provisions, of the Concession Agreement; or
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(ii)
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applicable law or regulation or required by any stock exchange or Governmental Entity where Comgás or the Seller would be in breach of the applicable law, regulation or requirements of the stock exchange or Governmental Entity if no action was undertaken;
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(d)
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with the prior written approval of the Purchaser (such approval not to be unreasonably withheld unless it is a matter that requires the Purchaser’s consent under paragraph 1 of Schedule 6), any matter specifically contemplated by the Business and Financing Plan at the applicable time that would otherwise. be outside of the normal course of business;
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(e)
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any matter reasonably undertaken to ensure the safe operation of Comgás’ business or the health and safety of Comgás’ employees;
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(f)
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any matter specifically required to be undertaken to comply with the terms of this Agreement or another Transaction Document (excluding, for the avoidance of doubt, any Capital Contribution Amounts, which shall require the prior written approval of the Purchaser (such approval not to be unreasonably withheld or delayed));
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(g)
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any matter undertaken at the written request of the Purchaser or with its prior written approval;
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(h)
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the declaration, making or payment of any cash dividend or cash distribution (including payment of dividends planned prior to the date of this Agreement and dividends and distributions in relation to which the declaration and payment of which has not been submitted at the date of this Agreement for approval by the Comgás controlling shareholders or by the Comgás board of directors or by a Comgás general shareholders’ meeting) provided that in all cases either:
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(i)
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such dividends are contemplated in the Business and Financing Plan; or
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(ii)
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the payment of such dividends or distributions are paid as a result of Comgás having additional profits available for distribution not contemplated at the time of preparation of the Business and Financing Plan and the payment of such dividends are paid in the ordinary course of
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(ii)
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business consistent with past practice and paid from excess cash flow of Comgás with no requirement for Comgás to incur any additional third party indebtedness to fund such payment; or
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(i)
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any matter undertaken by Comgás; that the Seller can reasonably demonstrate was undertaken in the ordinary course of business consistent with past practice and was specifically contemplated to be undertaken by, and provided for in, the Business and Financing Plan.
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6.3
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Where any matter set out in this clause 6 requires the prior written approval of the Purchaser, the Purchaser shall be deemed to have given such approval when it has not responded in writing to BG (whether it gives or withholds its approval or otherwise) within 5 Business Days of receiving written notice of the proposed matter, provided that BG has provided the Purchaser with all the relevant information that it reasonably requires to make an informed decision whether to give its prior written approval.
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Notifications
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6.4
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BG shall notify the Purchaser immediately of:
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(a)
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any matter, fact or circumstance which is a breach of clause 6.1; and
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(b)
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to the extent legally permitted, any action that would be in breach of clause 6.1 but for clause 6.2(c) or clause 6.2(e) applying to such action.
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6.5
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BG shall as soon as reasonably practicable disclose to the Purchaser any matter or thing which arises or of which any member of the BG Awareness Team becomes aware after entering into this Agreement but prior to Closing which is inconsistent with or a breach of any of the Integral Warranties or which will or may be a .breach of any Integral Warranty when the Integral Warranties are repeated immediately prior to Closing or which could reasonably be expected to render any of the Integral Warranties misleading immediately prior to Closing.
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SAP Licences
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6.6
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BG shall, during the period from the date of, this Agreement to Closing, use all reasonable endeavours to procure that SAP (UK) Limited assigns the SAP Licences to Comgás on or before Closing on substantially the same as the current terms (and in any event terms that do not materially increase the annual cost to Comgás for the SAP Licences). If BG is unable to procure such assignment on such terms on or before Closing, it shall (as soon as practicable after Closing and at no cost to Comgás) purchase for Comgás an equivalent number of IT software licences with substantially similar (but no less) capacity to replace the SAP Licences assigned by the BG Guarantor to Comgás.
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Board and Shareholder Meetings
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6.7
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Within one Business Day of the Unconditional Date, BG shall procure that the chairman of Comgás board of directors calls a meeting of the board of directors of Comgás to be held at Closing in accordance with the Comgás Articles for the purpose of (i) nominating, ad referendum of the shareholders of Comgás, the directors as may be informed by the Purchaser to BG prior to or on the Unconditional Date and (ii) acknowledging the resignation from the Comgás board of the directors appointed by BG.
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6.8
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Immediately after the chairman of Comgás calls a meeting of the board of directors of Comgás in accordance with clause 6.7, BG shall procure that its representative appointed in accordance with clause 10.5 of the Comgás Shareholders' Agreement calls a Preliminary Meeting to be held on the Business Day prior to Closing.
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6.9
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At the Preliminary Meeting called in accordance with clause 6.8, BG shall approve (i) the nomination of the directors indicated by the Purchaser to BG as described in clause 6.7 above; and (ii) the resignation of its directors from the board of directors of Comgás.
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6.10
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On the Closing Date, BG shall procure that the chairman of Comgás board of directors calls a meeting of the shareholders of Comgás to be held on 15 days’ notice at which the resolutions in the Agreed Form to ratify the nomination of the directors informed by the Purchaser to BG, as per clause 6.7 above, shall be put to the shareholders.
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6.11
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At the meeting of the board of directors of Comgás called in accordance with clause 6.7, BG shall procure that its appointed directors shall (i) nominate the directors, ad referendum of the shareholders of Comgás, indicated by the Purchaser to BG as described in clause 6.7 and (ii) resign from the board of directors of Comgás.
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7.1
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Closing shall take place at the Sao Paulo offices of BG's lawyers on the fifth Business Day after the Unconditional Date (or at such other place and time as the Purchaser and BG may agree in writing), provided that all the Conditions (other than any Condition waived in accordance with clause 3 .5) remain fulfilled at that date (the Closing Date).
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7.2
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At Closing each of BG and the Purchaser shall deliver or perform (or ensure that there is delivered or performed) all those documents, items and actions respectively listed in relation to that party or any of its Affiliates (as the case may be) in Schedule 5.
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7.3
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In the event of a breach of clause 7.2, the Purchaser (in the case of breach by BG) or BG (in the case of breach by the Purchaser), shall be entitled (in addition to and without prejudice to all other rights or remedies available to it,. including the right to claim damages) by written notice to the other, served on such date:
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(a)
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if it is a breach of paragraph 2(a), 3(a), 3(f), 3(g) or 3(h) of Part A (BG Obligations) of Schedule 5 or paragraph 1(a), 1(d), 1(f) or 1(g) of Part B (Purchaser Obligations). of Schedule 5, to terminate this Agreement (other than the Surviving Provisions) provided that BG shall not be able to exercise any: such power that it may otherwise have had if the Purchaser can reasonably demonstrate that it has arranged the electronic transmission of funds necessary to pay for the Shares;
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(b)
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to effect Closing so far as practicable having regard to the breach of clause 7.2 that has occurred; or
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(c)
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to fix a new date for Closing not being later than 5 Business Days after the date of the notice in which case the foregoing provisions of this clause 7.3 shall apply to Closing as so deferred.
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7.4
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In the event of termination pursuant to clause 7.3(a) above, none of the parties (nor any of their Affiliates) shall have any claim under this Agreement of any nature whatsoever against any other party (or any of their Affiliates) except in respect of any rights and liabilities which have accrued before termination or under any of the Surviving Provisions.
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8.1
|
BG warrants to the Purchaser as at the date of this Agreement in the terms of the Integral Warranties and the BG Warranties. The BG Guarantor warrants to the Purchaser as at the date of this Agreement in the terms of the BG Guarantor Warranties.
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8.2
|
The Integral Warranties, the BG Warranties and the BG Guarantor Warranties shall be deemed to be repeated immediately prior to Closing by reference to the facts and circumstances then subsisting as if any reference in such Integral Warranties, BG Warranties and the BG Guarantor Warranties to the date of this Agreement was a reference to the Closing Date.
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8.3
|
The Integral Warranties, the BG Warranties and the BG Guarantor Warranties are given subject to the limitations set out in Schedule 3.
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8.4
|
Each of the Integral Warranties, the BG Warranties and the BG Guarantor Warranties is separate and independent and is not limited by reference to any other Integral Warranties, BG Warranties or BG Guarantor Warranties.
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8.5
|
None of the limitations in Schedule 3 shall apply to any liability for any Claim which arises (or to the extent that it is increased) as a consequence of fraud or fraudulent misrepresentation.
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8.6
|
Without prejudice to any rights the Purchaser may have against BG under this Agreement, all actions performed, and all warranties and indemnities provided, by BG under this Agreement are performed and provided, respectively, by BG solely in its capacity as shareholder of the Seller and, for the avoidance of doubt, nothing in this clause 8.6 restricts or limits (i) the obligation(s), or (ii) the liability of either BG or the BG Guarantor under any term of this Agreement.
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9.1
|
The Purchaser warrants to each of BG and the BG Guarantor as at the date of this Agreement in the terms of the Purchaser Warranties and such warranties shall be deemed to be repeated immediately prior to Closing by reference to the facts and circumstances then subsisting as if any reference in such warranties to the date of this Agreement was a reference to the Closing Date.
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9.2
|
The Purchaser Guarantor warrants to each of BG and the BG Guarantor as at the date of this Agreement in the terms of the Purchaser Guarantor Warranties and such warranties shall be deemed to be repeated immediately prior to Closing by reference to the facts and circumstances then subsisting as if any reference in such warranties to the date- of this Agreement was a reference to the Closing Date.
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9.3
|
The Purchaser undertakes to BG that from the date of this Agreement to the Closing Date it will not take any action which would, or might reasonably be expected to, prejudice its ability to pay the amounts payable by it pursuant to this Agreement.
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10.1
|
In consideration of the Purchaser entering into this Agreement, the BG Guarantor:
|
(a)
|
unconditionally and irrevocably guarantees to the Purchaser as a continuing obligation that BG and the Seller will comply properly and punctually with their respective obligations under this Agreement and/or each Transaction Document to which they are a party; and
|
(b)
|
agrees that each time BG and/or the Seller fails to make any payment within 10 Business Days of the date it is due under or pursuant to this Agreement (or any other Transaction Document to which it is a party), the BG Guarantor shall on demand (without requiring the Purchaser first to take steps against BG, the Seller or any other person) pay that amount to the Purchaser.
|
10.2
|
The BG Guarantor's liability under clause 10.1 shall not be discharged or impaired by:
|
(a)
|
any variation or assignment of this Agreement or any Transaction Document or any waiver of its or their terms;
|
(b)
|
any release of, or granting of time or other indulgence to BG, the Seller or any third party;
|
(c)
|
any winding up, dissolution, reconstruction, legal limitation, incapacity or lack of corporate power or authority or other circumstances affecting BG or the Seller (or any act taken by the Purchaser in relation to any such event); or
|
(d)
|
any other act, event, neglect or omission (whether or not known to BG, the Seller, the BG Guarantor or the Purchaser) which would or might (but for this clause) operate to impair or discharge the BG Guarantor's liability or afford BG, the Seller or the BG Guarantor any legal or equitable defence.
|
10.3
|
In consideration of the Purchaser entering into this Agreement, as a separate, additional continuing and primary obligation, the BG Guarantor undertakes to indemnify the Purchaser against any costs, losses and/or claims suffered or incurred by it as a result of a failure by BG and/or the Seller to comply properly and punctually with its obligations under this Agreement or any other Transaction Document to which it is a party.
|
11.1
|
In consideration of BG and the Seller entering into this Agreement, the Purchaser Guarantor:
|
(a)
|
unconditionally and irrevocably guarantees to each of BG and the Seller as a continuing obligation that the Purchaser will comply properly and punctually with its obligations under this Agreement and each Transaction Document (other than the Deed of Waiver and Amendment and the Deed of Adherence to the Concession Agreement) to which it is a party; and
|
(b)
|
agrees that each time the Purchaser fails to make any payment within 10 Business Days of the date it is due under or pursuant to this Agreement (or any other Transaction Document (other than the Deed of Waiver and Amendment and the Deed of Adherence to the Concession Agreement)
|
to which it is a party), the Purchaser Guarantor shall on demand (without requiring BG or the Seller first to take steps against the Purchaser or any other person) make such payment.
|
11.2
|
The Purchaser Guarantor's liability under clause 11.1 shall not be discharged or impaired by:
|
(a)
|
any variation or assignment of this Agreement or any Transaction Document or any waiver of its or their terms;
|
(b)
|
any release of, or granting of time or other indulgence to the Purchaser or any third party;
|
(c)
|
any winding up, dissolution, reconstruction, legal limitation, incapacity or lack of corporate power or authority or other circumstances affecting the Purchaser (or any act taken by BG or the Seller in relation to any such event); or
|
(d)
|
any other act, event, neglect or omission (whether or not known to BG, the Seller, the Purchaser Guarantor or the Purchaser) which would or might (but for this clause) operate to impair or discharge the Purchaser Guarantor's liability or afford the Purchaser or the Purchaser Guarantor any legal or equitable defence.
|
11.3
|
In consideration of BG and the Seller entering into this Agreement, as a separate, additional continuing and primary obligation, the Purchaser Guarantor undertakes to indemnify BG and/or the Seller (as applicable) against any costs, losses and/or claims suffered or incurred by it as a result of a failure by the Purchaser to comply properly and punctually with its obligations under this Agreement or any other Transaction Document (other than the Deed of Waiver and Amendment and the Deed of Adherence to the Concession Agreement) to which it is a party.
|
12.1
|
If the Purchaser becomes aware of any claim or potential claim by a third party after the Closing Date (a Third Party Claim) which is likely to result in a General Warranty Claim being made, then:
|
(a)
|
as soon as reasonably practicable (and in any event within 15 Business Days of becoming so aware or, where proceedings have been commenced in respect of such Third Party Claim and a shorter time period than 15 Business Days is provided for by applicable law to respond to such Third Party Claim, within the first half of such shorter time period) it shall give notice of the Third Party Claim to BG (provided that the parties agree that failure by the Purchaser to give notice within such time shall not invalidate any Claim by the Purchaser relating to such Third Party Claim or reduce the amount recoverable by the Purchaser in respect of such Claim);
|
(b)
|
subject to their being paid all reasonable costs and expenses and indemnified for any liabilities, the Purchaser shall disclose to BG all material information of which the Purchaser is aware which relates to the Third Party Claim and shall procure that any other relevant member of the Purchaser Group shall, give all such material information and reasonable assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, as BG or its Representatives may reasonably request subject to BG agreeing in such form as the Purchaser may reasonably require to keep all such information confidential and to use it only for the purpose of investigating and defending the claim in question;
|
(c)
|
the Purchaser shall not (and shall ensure that each member of the Purchaser Group shall not) admit liability or make any agreement or compromise in relation to the Third Party Claim without the prior written approval of BG;
|
(d)
|
subject to clause 12.1(e), BG shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to have the conduct of any proceedings, negotiations or appeals relating to the Third Party Claim (including making counterclaims or other claims against third parties with the prior written consent of the Purchaser, such consent not to be unreasonably withheld or delayed) in the name of and on behalf of the Purchaser or other member of the Purchaser Group concerned;
|
(e)
|
if BG sends a notice to the Purchaser pursuant to clause 12.1(d):
|
i)
|
the Purchaser shall give, and the Purchaser shall procure that any other member of the Purchaser Group shall give, subject to the Purchaser and each member of the Purchaser Group being paid all reasonable costs and expenses and indemnified to its reasonable satisfaction for any liabilities, all such information and assistance, including reasonable access to premises and personnel and the reasonable right to examine and copy or photograph any assets, accounts, documents and records, as BG or its Representatives may reasonably request, including instructing such professional or legal advisers as BG may nominate to act on behalf of the Purchaser or other member of the Purchaser Group concerned but in accordance with BG's instructions; and
|
(ii)
|
BG shall keep the Purchaser reasonably informed of the status of the Third Party Claim; and
|
(f)
|
the Purchaser may, following any request by 'BG to have sole conduct of a Third Party Claim pursuant to clause 12.1 (d), and where the Third Party Claim is made by a Key Counterparty, notify BG that BG and the Purchaser shall have joint conduct of such Third Party Claim, following which BG and the Purchaser shall co-operate to ensure that the Third Party Claim is conducted in a timely and orderly fashion, and:
|
(i)
|
each party shall consult and have regard to the reasonable requests or representations of the other parties as to what action to take in relation to such Third Party Claim, and shall give all such information and assistance, including reasonable access to premises and personnel al)d; the. Reasonable right to examine and copy or photograph any assets, accounts, documents and records, as a party or its Representatives may reasonably request; and
|
(ii)
|
no party shall take any action that would be reasonably likely to prejudice the commercial interests of the other parties or any Affiliate thereof.
|
13.1
|
BG hereby undertakes to indemnify and keep indemnified and covenants to hold harmless the Purchaser and the Purchaser Guarantor against any Costs incurred by the Purchaser or Purchaser Guarantor or 60.05371% of any Costs incurred by Comgás in each case in connection with or arising out of the CVM Administrative Matters (and including all such Costs suffered or incurred in disputing, defending, investigating or providing evidence in connection with establishing its right to be indemnified pursuant to this clause).
|
13.2
|
Notwithstanding clause 13.1 neither the Purchaser nor the Purchaser Guarantor will be entitled to any indemnity from BG to the extent that the Costs referred to in clause 13.1 result from, directly or indirectly, the fraud, or wilful default of the Purchaser or the Purchaser Guarantor or the breach by the Purchaser or the Purchaser Guarantor of any of the undertakings and obligations given by the Purchaser under this Agreement.
|
13.3
|
Subject to clause 13.4, BG shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to have the conduct of any proceedings, negotiations or appeals relating to the CVM Administrative Matters (including making counterclaims or other claims against third parties with the prior written consent of the Purchaser, such consent not to be unreasonably withheld) in the name of and on behalf of the Purchaser or other member of the Purchaser Group concerned.
|
13.4
|
If BG sends a notice to the Purchaser pursuant to clause 13.3:
|
(a)
|
the Purchaser shall, and the Purchaser shall procure that any other member of the Purchaser Group shall give, subject to the Purchaser and each member of the Purchaser Group being paid all reasonable costs and expenses and indemnified to its reasonable satisfaction for any liabilities, all such information and assistance, including reasonable access to premises and personnel and the reasonable right to examine and copy or photograph any assets, accounts, documents and records, as BG or its Representatives may reasonably request, including instructing such professional or legal advisers as BG may nominate to act on behalf of the Purchaser or other member of the Purchaser Group concerned but in accordance with BG's instructions; and
|
(b)
|
BG shall keep the Purchaser reasonably informed of the status of any proceedings, negotiations or appeals relating to the CVM Administrative Matters.
|
|
The Tax Deed shall come into effect at Closing.
|
15.1
|
BG agrees with the Purchaser (for itself and as trustee for Comgás) to waive to the greatest extent permissible at law any rights or claims which it may have against Comgás or the present or former Representatives of Comgás in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by Comgás or its Representatives in connection with the giving of the General Warranties and the Fundamental Warranties, this Agreement or the Transaction Documents or the preparation of the Disclosure Letter or the Closing Disclosure Letter.
|
15.2
|
The Purchaser agrees to waive to the greatest extent permissible at law any rights or claims which it may have against the BG Awareness Team in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by BG or its Representatives in connection with the giving of the Integral Warranties, the BG Warranties or the BG Guarantor Warranties, this Agreement or the Transaction Documents or the preparation of the Disclosure Letter or the Closing Disclosure Letter.
|
15.3
|
BG agrees to waive to the greatest extent permissible at law any rights or claims which it may have against the Purchaser Deal Team in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by the Purchaser or the Purchaser Guarantor or their respective Representatives in connection with the giving of the Purchaser Warranties or the Purchaser Guarantor Warranties, this Agreement or the Transaction Documents.
|
15.4
|
The parties agree and acknowledge that:
|
(a)
|
no waiver is given by the Seller pursuant to the provisions of clause 15.1 or 15.3;
|
(b)
|
the Integral Warranties and BG Warranties shall be given by BG alone and not by the Seller;
|
(c)
|
the BG Guarantor Warranties shall be given by the BG Guarantor alone and not by the Seller;
|
(d)
|
the Seller shall not have any liability to the Purchaser, BG or the BG Guarantor and no party shall have any right of action, claim or recourse against the Seller in respect of or pursuant to:
|
(i)
|
the Integral Warranties, the BG Warranties or the BG Guarantor Warranties;
|
(ii)
|
the indemnity set out in clause 13 (Indemnity); or
|
(iii)
|
the no Leakage covenant set out in clause 5 (No Leakage Covenant).
|
19.1
|
Any payment to be made pursuant to this Agreement by the Purchaser (or any member of the Purchaser Group):
|
(a)
|
in respect of an obligation to BG shall be made to such bank account as BG may notify the Purchaser in writing five Business Days prior to the due date for such payment; and
|
(b)
|
in respect of an obligation to the Seller shall, unless otherwise provided in this Agreement, be made to such bank account as the Seller may notify the Purchaser in writing five Business Days prior to the due date for such payment.
|
19.2
|
Any payment to be made pursuant to this Agreement by BG or the BG Guarantor shall be made to the Purchaser's Bank Account.
|
19.3
|
Payments under clause 19.1 and 19.2 shall be in immediately available funds by electronic transfer on the due date for payment. Receipt of the amount due shall be an effective discharge of the relevant payment obligation.! Payments shall be made in Brazilian Reais unless otherwise specified in this Agreement or another Transaction Document.
|
19.4
|
If any sum due for payment in accordance with this Agreement is not paid on the due date for payment, the person in default shall pay Default Interest on that sum from but excluding the due date to and including the date of actual payment calculated on a daily basis.
|
19.5
|
All sums payable under this Agreement shall be paid free and clear of all deductions or withholdings whatsoever, save only as provided in this Agreement or as required by law.
|
19.6
|
If any sum paid by Purchaser or Purchaser Guarantor in respect of a Purchaser Obligation (excluding payment of Price) or by BG or BG Guarantor in respect of a BG Obligation (including any payment made under clause 5 or clause 13 of this Agreement) is brought into charge to Tax
|
by any Tax authority in the hands of the recipient then, except in relation to interest, the payer shall pay such additional amount as shall be required to ensure that the total amount paid, less the Tax chargeable on such amount, is equal to the amount that would otherwise be payable.
|
19.7
|
To the extent that any Tax in respect of which an additional amount has been paid under clause 19.6 above results in the recipient obtaining a Relief(all reasonable endeavours having been used to obtain such Relief as soon as reasonably practical and where appropriate in priority to other Reliefs), the recipient shall pay to the payer, within ten Business Days of obtaining the benefit of the Relief, an amount equal to the lesser of the value of the Relief obtained and the additional sum paid under clause 19.6.
|
19.8
|
In determining the amount payable in respect of any Purchaser Obligation or BG Obligation (other than, for the avoidance of doubt, amounts payable under the Tax Deed) account shall be taken of any Relief or other benefit available to the recipient or any Affiliate of the recipient (including, in the case of payments to the Purchaser, Comgás) in respect of the matter giving rise to the payment, insofar as not taken into account pursuant to clause 19.7 above.
|
19.9
|
Any sum payable under this Agreement is exclusive of any applicable VAT, which shall be paid in addition or, to the extent of any irrecoverable VAT required to be accounted for under the reverse charge mechanism, deducted from the sum payable.
|
20.1
|
Save for the Announcements (and any announcement that is consistent in all material respects with the Announcements or any other announcement made in accordance with this clause 20), no party (nor any of their respective Affiliates) shall make any announcement or issue any circular in connection with the Proposed Transaction or the existence or subject matter of this Agreement (or any other Transaction Document) without the prior written approval of the Purchaser (if the party wishing to announce or issue is the Seller, BG, the BG Guarantor or any of BG's Affiliates) or BG (if the party wishing to announce or issue is the Purchaser, the Purchaser Guarantor or any of the Purchaser’s Affiliates), such approval not to be unreasonably withheld or delayed.
|
20.2
|
The restriction in clause 20.1 shall not apply if and to the extent that the announcement or circular is required by applicable, law or by· any stock exchange or governmental, regulatory or supervisory body or authority of competent jurisdiction. If this exception applies, the party making the announcement or issuing the circular shall use its reasonable efforts to consult (if practicable in the circumstances) with the Purchaser (if the party wishing to announce or issue is the Seller, BG,. the BG Guarantor or any of BG's Affiliates) or BG (if the party wishing to announce or issue is the Purchaser, the Purchaser Guarantor or any of the Purchaser’s Affiliates) in advance ~s to its form, content and timing.
|
21.1
|
For the purposes of this clause 21, Confidential Information means:
|
(a)
|
(in relation to the obligations of the Purchaser) any information received or held by the Purchaser (or any of its Representatives) in connection with the entry into this Agreement relating to the BG Group or, prior to Closing, the Seller or Comgás (howsoever and whensoever obtained or received in relation to the Proposed Transaction); or
|
(b)
|
(in relation to the obligations of the Seller, BG and the BG Guarantor) the Comgás Confidential Information and any information received or held by BG (or any of its Representatives) in connection with the entry into this Agreement relating to the Purchaser Group or, after Closing, Comgás (howsoever and whensoever obtained or received in relation to the Proposed Transaction); and
|
(c)
|
(in relation to the obligations of the Purchaser, the Seller, BG and the BG Guarantor) any information relating to the provisions of, and negotiations leading to, this Agreement and the other Transaction Documents,
|
21.2
|
Each party shall (and shall ensure that each of its Representatives shall) maintain Confidential Information in confidence and not disclose Confidential Information to any person except (i) as this clause 21 permits or (ii) (if the disclosing party is the Seller, BG or the BG or any of their respective Representatives) as the Purchaser approves in writing or (if the disclosing party is the Purchaser or any of its Representatives) as BG approves in writing.
|
21.3
|
Clause 21.2 shall not prevent disclosure by a party or its Representatives to the extent
|
|
that:
|
(a)
|
disclosure is required by law or by any stock exchange or any regulatory, governmental or antitrust body (including any tax authority) having applicable jurisdiction (provided, that the disclosing party shall (except in relation to disclosure to a tax authority and to the extent practicable in the circumstances) consult with the Purchaser (if the disclosing party is the Seller, BG, the BG Guarantor or any of their respective Representatives) or BG (if the disclosing party is the Purchaser or any of its Representatives) in advance as to the form, content and timing of the disclosure);
|
(b)
|
disclosure is of Confidential Information which was lawfully in the possession of that party or any of its Representatives (in either case as evidenced by written records) without any obligation of secrecy prior to its being received or held;
|
(c)
|
disclosure is of Confidential Information which has previously become publicly available other than through that party's fault or that of its Representatives);
|
(d)
|
disclosure is required for the purpose of any judicial or arbitral proceedings arising out of this Agreement (or any other Transaction Document).
|
21.4
|
Each party undertakes that it (and its Affiliates) shall only disclose Confidential Information to Representatives if it is reasonably required for purposes connected with the Proposed Transaction and only if the Representatives are informed of the confidential nature of the Confidential Information.
|
21.5
|
Each party agrees that it (and its Affiliates and Representatives) shall not use Confidential Information for any purpose other than in relation to the proper performance of its obligations and exercise of its rights under this Agreement (or any other Transaction Document) or in connection with the business of Comgás (by (i) the BG Group prior to Closing, (ii) the Purchaser after Closing, and (iii) the Seller prior to or after Closing whilst it holds shares in Comgás).
|
21.6
|
If this Agreement terminates, the Purchaser shall as soon as practicable on request by BG or the BG Guarantor:
|
(a)
|
return to BG or destroy all written documents and other materials relating to BG, the BG Guarantor, the Seller or Comgás or this Agreement (including any Confidential Information) received from BG or its Representatives in connection with the entry into this Agreement and in the possession of the Purchaser (or its Representatives) without keeping any copies thereof;
|
(b)
|
destroy (and procure that its Representatives destroy) all information or other documents derived from such Confidential Information referred to in (a) above; and
|
(c)
|
so far as it is practicable to do so, expunge such Confidential Information referred to in (a) above from any computer, word processor or other device, save to the extent:
|
(i)
|
that the information relates to information disclosed or permitted to be disclosed under clause 21.3 or information to which clause 21.3 applies; or
|
(ii)
|
required to comply with applicable laws, regulations or professional rules, and the Purchaser shall confirm to BG and the BG Guarantor in writing (signed by a duly authorised representative of the Purchaser) that the Purchaser has complied in full with its obligations under this clause 21.6.
|
21.7
|
Without affecting any other rights or remedies that each party may have, each party acknowledges that another party may be irreparably harmed by any breach of the terms of this clause 21 and that damages alone may not necessarily be an adequate remedy. Accordingly, each party may be entitled to seek, to the extent permitted by law, the remedies of injunction, specific performance and other equitable relief, or any combination of these remedies, for any threatened or actual breach of its terms.
|
22.1
|
Except as provided in this clause 22 or unless BG, the BG Guarantor, the Purchaser and the Purchaser Guarantor specifically agree in writing, no person shall assign, transfer, charge or otherwise deal with all or any of its rights under this Agreement nor grant, declare, create or dispose of any right or interest in it. Any purported assignment in contravention of this clause 22 shall be void.
|
22.2
|
If an assignment is made in accordance with this clause 22, the liabilities of the parties under this Agreement shall be no greater than such liabilities would have been if the assignment had not occurred.
|
23.1
|
Each of BG, the Seller and the Purchaser shall and shall procure that their Affiliates shall, upon being requested by another party, execute (or procure the execution of) such further-documents as may be required by law or be reasonably required by another party to implement and give effect to this Agreement and the other Transaction Documents.
|
23.2
|
Each of BG and the Purchaser shall procure that its Affiliates comply with all obligations under this Agreement which are expressed to apply to any such Affiliates (save, in the case of BG, for the obligations under this Agreement which are expressed to apply to the BG Guarantor or, in the case of the Purchaser, for the obligations under this Agreement which are expressed to apply to the Purchaser Guarantor).
|
24.1
|
Subject to clause 24.2 and except as otherwise provided in this Agreement (or any other Transaction Document), the parties shall each be responsible for their own costs, charges and other expenses (including those of its Affiliates) incurred in connection with the Proposed Transaction.
|
24.2
|
The Purchaser or its Affiliates shall bear all !OF taxes in relation to the Price, all notarisation fees or other documentary transfer or transaction duties, and any other transfer or remittance taxes including in each case any related interest or penalties arising as a result of this Agreement or of any of the other Transaction Documents (other than the Deed of Waiver and Amendment and the Deed of Adherence to the Concession Agreement).
|
25.1
|
Any notice in connection with this Agreement shall be in writing in English and delivered by hand, fax, pdf attachment to email, registered post or courier using an internationally recognised courier company to the address, fax number or email address (and marked for the attention of the person) specified in clause 25.2 in relation to each party. A notice shall be effective upon receipt and shall be deemed to have been received (i) at the time of delivery, if delivered by hand, registered post or courier or (ii) at the time of transmission if delivered by fax or email provided that in either case, where delivery occurs outside Working Hours, notice shall be deemed to have been received at the start of Working Hours on the next following Business Day.
|
25.2
|
The addresses, fax numbers and email addresses of the parties for the purpose of clause 25.1 are:
|
Address:
|
c/o 100 Thames Valley Park Drive
|
|
Reading
|
|
Berkshire
|
|
RG6 1PT
|
|
United Kingdom
|
Fax:
|
+44 118 929 3791
|
Email:
|
vinter@bg-group.com
|
For the attention of:
|
The General Counsel
|
Address:
|
Shell Gas B.V.
|
|
Carel Van Bylandtlaan 30
|
|
The Hague
|
|
2596HR
|
|
The Netherlands
|
Fax:
|
+31 70 377 6790
|
For the attention of:
|
General Attorney
|
Fax:
|
+55 21 3984 7669
|
Email:
|
sylvia.figueiredo@shell.com
|
For the attention of:
|
Sylvia Figueiredo Sacco
|
Address:
|
c/o 100 Thames Valley Park Drive
|
|
Reading
|
|
Berkshire
|
|
RG6 1PT
|
|
United Kingdom
|
Fax:
|
+44 118 929 3791
|
Email:
|
vinter@bg-group.com
|
For the attention of:
|
The General Counsel
|
Address:
|
c/o 100 Thames Valley Park Drive
|
|
Reading
|
|
Berkshire
|
|
RG6 1PT
|
|
United Kingdom
|
Fax:
|
+44 118 929 3791
|
Email:
|
vinter@bg-group.com
|
For the attention of:
|
The General Counsel
|
Address:
|
Avenida Presidente Juscelino Kubitschek, 1327, 4° andar, sala 01,
|
|
CEP 04543-011, São Paulo, SP, Brazil
|
Fax:
|
+55 11 3897-9799
|
Email:
|
juridico@cosan.com.br
|
For the attention of:
|
Diretor Presidente and Diretor Jurídico
|
Address:
|
Avenida Presidente Juscelino Kubitschek, 1327, 4° andar, sala 01,
|
|
CEP 04543-011, São Paulo, SP, Brazil
|
Fax:
|
+55 11 3897-9799
|
Email:
|
juridico@cosan.com.br
|
For the attention of:
|
Diretor Presidente and Diretor Jurídico
|
25.3
|
Each party undertakes to notify the other parties by notice served in accordance with this clause 25 if the address, fax number, email address and/or person specified in clause 25.2 is no longer the appropriate address, fax number, email address and/or person for the services of notices.
|
(a)
|
no party shall have any claim or remedy in respect of any statement, representation, warranty or undertaking made by or on behalf of another party (or any of its Connected Persons) in relation to the Proposed Transaction which is not expressly set out in this Agreement or any other Transaction Document;
|
(b)
|
any terms or conditions implied by law in any jurisdiction in relation to the Proposed Transaction are excluded to the fullest extent permitted by law or, if incapable of exclusion, any right, or remedies in relation to them are irrevocably waived;
|
(c)
|
the only right or remedy of a party in relation to any provision of this Agreement or any other Transaction Document shall be for breach of this Agreement or the relevant Transaction Document; and
|
(d)
|
except for any liability in respect of a breach . of this Agreement or any other Transaction Document, no party (or any of its Connected Persons) shall owe any duty of care or have any liability in tort or otherwise to another party (or its respective Connected Persons) in relation to the Proposed Transaction,
|
27.1
|
Except as expressly provided in this Agreement, no failure or delay by any party in exercising any right or remedy relating to this Agreement or any of the Transaction Documents shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time.
|
27.2
|
No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy.
|
27.3
|
A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly states otherwise.
|
27.4
|
By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
|
27.5
|
The rights and remedies of a party under this Agreement may be exercised even if this involves a conflict of duty or a party has a personal interest in their exercise.
|
27.6
|
Rights given to a party under this Agreement and liabilities of a party under it are not affected by anything which might otherwise affect it by applicable law.
|
31.1
|
The Connected Persons specified in clause 26 (Whole Agreement) shall have the right to enforce the relevant terms of that clause by reason of the Contracts (Rights of Third Parties) Act 1999. The individuals referred to in clause 15.2 and 15.3 shall have the right to enforce clause 15.2 and 15.3 respectively under the Contracts (Rights of Third Parties) Act 1999. These rights are subject to (i) the rights of the parties to amend or vary this Agreement without the consent of any Connected Person or any such individual and (ii) the other terms and conditions of this Agreement.
|
31.2
|
Except as provided in clause 31.1, a person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
|
32.1
|
This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by, and interpreted in accordance with, English law.
|
32.2
|
Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination (Dispute), shall be referred to and finally resolved by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (the ICC Rules), which Rules are deemed to be incorporated by reference into this clause.
|
32.3
|
There shall be three arbitrators. Where there are only two parties to a Dispute, one arbitrator shall be nominated by each of those parties for confirmation by the ICC Court in accordance with the ICC Rules. Where there are more than two parties to a Dispute, whether as Claimant or as Respondent, the multiple Claimants, jointly, and the multiple Respondents, jointly, shall nominate an arbitrator for confirmation by the ICC Court in accordance with the ICC Rules (Joint Nominations). The third arbitrator, who shall act as the chairman of the tribunal, shall be nominated by agreement of the two party-appointed arbitrators within 14 days of the confirmation of the appointment of the second arbitrator, or in default of such agreement, shall be appointed by the ICC Court.
|
32.4
|
In the absence of Joint Nominations under clause 32.3 and where all parties are unable to agree to a method for the constitution of the arbitral tribunal, the ICC Court may appoint each member of the arbitral tribunal pursuant to Article 12(8) of the ICC Rules.
|
32.5
|
The seat, or legal place, of arbitration shall be Geneva, Switzerland. The tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate, including London, England.
|
32.6
|
The language to be used in the arbitral proceedings shall be English.
|
32.7
|
The award shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction.
|
32.8
|
In the event that recourse is needed to the English courts in relation to any arbitral proceedings contemplated by this clause 32, the Purchaser shall at all times maintain an agent for service of process. Such agent shall be Law Debenture currently of 5th Floor, 100 Wood Street, London EC2V 7EX and any claim form, judgment or other notice of legal process shall be sufficiently served on the Purchaser if delivered to such agent at its address for the time being. The Purchaser irrevocably undertakes not to revoke the authority of this agent and if, for any reason, BG requests the Purchaser to do so it shall promptly appoint another such agent with au address in England and advise BG. If, following such a request, the Purchaser fails to appoint another agent, BG shall be entitled to appoint one on behalf of the Purchaser at the Purchaser's expense.
|
32.9
|
In the event that recourse is needed to the English courts in relation to any arbitral proceedings contemplated by this clause 32, BG shall at all times maintain an agent for service of process. Such agent shall be BG International Limited currently of Thames Valley Park, Reading, Berkshire, RG6 1PT and any claim form, judgment or other notice of legal process shall be sufficiently served on BG if delivered to such agent at its address for the time being. BG irrevocably undertakes not to revoke the authority of this agent and if, for any reason, the Purchaser requests BG to do so it shall promptly appoint another such agent with an address in England and advise the Purchaser. If, following such a request, BG fails to appoint another agent, the Purchaser shall be entitled to appoint one on behalf of BG at BG’s expense.
|
32.10
|
In the event that recourse is needed to the English courts in relation to any arbitral proceedings contemplated by this clause 32, the Seller shall at all times maintain an agent for service of process. Such agent shall be BG International Limited currently of Thames Valley Park, Reading, Berkshire, RG6 1PT prior to Closing and Shell International Limited currently of Shell Centre, London SE1 7NA after Closing and any claim form, judgment or other notice of legal process shall be sufficiently served on the Seller if delivered to such agent at its address for the time being. The Seller irrevocably undertakes not to revoke the authority of this agent and if, for any reason, the Purchaser requests the Seller to do so it shall promptly appoint another such agent with an address in England and advise the Purchaser. If, following such a request, the Seller fails to appoint another agent, the Purchaser shall be entitled to appoint one on behalf of the Seller at the Seller's expense.
|
32.11
|
In the event that recourse is needed to the English courts in relation to any arbitral proceedings contemplated by this clause 32, the Purchaser Guarantor shall at all times maintain an agent for service of process. Such agent shall be Law Debenture currently of 5th Floor, 100 Wood Street, London EC2V 7EX and any claim form, judgment or other notice of legal process shall be sufficiently served on the Seller if delivered to such agent at its address for the time being. The Purchaser Guarantor irrevocably undertakes not to revoke the authority of this agent and if, for any reason, BG requests the Purchaser Guarantor to do so it shall promptly appoint another such agent with an address in England and advise BG. If, following such a request, the Purchaser Guarantor fails to appoint another agent, BG shall be entitled to appoint one on behalf of the Purchaser Guarantor at the Purchaser Guarantor’s expense.
|
1.
|
Name:
|
Companhia de Gás de São Paulo - COMGÁS
|
2.
|
Date of Incorporation:
|
28 August 1872
|
3.
|
Place of Incorporation:
|
São Paulo-SP, Brazil
|
4.
|
Type of Company:
|
Publicly-Held Company (Category A)
|
5.
|
Registered Number:
|
01563-6 (Código CVM)
|
6.
|
Registered Office:
|
Rua das Olimpíadas, 205, 10th floor. São Paulo-SP, Brazil.
|
7.
|
Directors:
(Conselho de Administração)
|
Nelson Luiz Costa Silva
Luis Augusto Domenech
Alexandre Cerqueira da Silva
Fernando Fleury Salek
André Lopes de Araújo
Roberto Schloesser Junior
Fernando José Ferreira da Mouta
Sérgio Fialdini Neto
Jurandilson Carvalho Fernandes
|
8.
|
Officers:
(Diretoria)
|
Luis Augusto Domenech
Carlos Eduardo Freitas Bréscia
José Carlos Broisler Oliver
Leonardo Serra Netto Lerner
Marcus Vinicius Vaz Bonini
Roberto Collares Lage
Sérgio Luiz da Silva
|
9.
|
Authorized Capital
|
R$671,672,500.00
|
10.
|
Issued Capital:
|
R$636,984,619.26
|
11.
|
Registered Shareholders: (shareholders holding more than 5% of any class of shares)
|
Integral Investments B.V.
Shell Brazil Holding B.V.
MCAP Poland Fundo de Investimento em Ações Taef Fund, LLC
|
12.
|
Accounting Reference Date:
|
31 December
|
13.
|
Auditors:
|
Pricewaterhousecoopers Auditores Independentes
|
14.
|
Total shares held by Integral Investments B.V.:
|
82,520,512 voting shares and 3,649,056 preferred shares
|
(d)
|
the Comgás Accounts for the financial years ended 31 December 2011, 31 December 2010 and 31 December 2009.
|
(a)
|
Each of the Integral Shareholders’ Agreement and the Comgás Shareholders’ Agreement are in full force and effect. Neither BG nor the Seller is in material default under the Comgás Shareholders’ Agreement.
|
(b)
|
Neither BG nor the Seller has received written notice in the 24 months prior to the date of this Agreement that it is in material default under either the Integral Shareholders’ Agreement or the Comgás Shareholders’ Agreement and BG is not aware that any other party to the Integral Shareholders’ Agreement or the Comgás Shareholders’ Agreement is or has been in the 24 months prior to the date of this Agreement in material default under either the Integral Shareholders’ Agreement or the Comgás Shareholders’ Agreement.
|
(a)
|
All the Shares have been validly issued, are fully paid or properly credited as fully paid and (i) the Seller is the sole legal and beneficial owner of the Shares free from all Third Party Rights (other than any Third Party Rights arising under the Concession Agreement, the Comgás Shareholders’ Agreement or the Comgás Articles) and (ii) (subject only to any Third Party Rights arising under the Concession Agreement, the Comgás Shareholders’ Agreement or the Comgás Articles) BG is entitled to procure the transfer of the Shares with Full Title Guarantee and free from Third Party Rights on the terms of this Agreement, provided that, notwithstanding the foregoing, the Shares shall be transferred to the Purchaser on Closing with Full Title Guarantee and free from all Third Party Rights.
|
(b)
|
The Seller will be at Closing the sole legal and beneficial owner of the Shares free from all Third Party Rights and BG will be at Closing entitled to procure the transfer of the Shares with Full Title Guarantee and free from all Third Party Rights on the terms of this Agreement.
|
(c)
|
There is no agreement or commitment by the Seller or BG to give or create any Third Party Right on or over the Shares and neither BG nor the Seller has received written notice from any person of a claim to be entitled to any right over or affecting the Shares.
|
(d)
|
Neither BG nor the Seller has entered into, and BG is not aware of, any agreement (other than the Pre-Emptive Right Agreement) whereby any person has the right (whether exercisable now or in the future and whether contingent or not) to call for the issue, allotment or transfer of any share or loan capital of Comgás under any option or other agreement or otherwise howsoever.
|
(e)
|
All the BG Shares have been validly issued, are fully paid or properly credited as fully paid and (i) BG is the sole legal and beneficial owner of the BG Shares free from all Third Party Rights (other than any third Party Rights arising under the Concession Agreement, the Comgás Shareholders’ Agreement or the Comgás Articles) and (ii) (subject only to any Third Party Rights arising under the Concession Agreement, the Comgás Shareholders’ Agreement or the Comgás Articles) BG is entitled to transfer of the BG Shares with Full Title Guarantee and free from Third Party Rights on the terms of this Agreement, provided that, notwithstanding the foregoing, the BG Shares shall be transferred to the Purchaser on Closing with Full Title Guarantee and free from all Third Party Rights.
|
(f)
|
BG will be at Closing the sole legal and beneficial owner of the BG Shares free from all Third Party Rights and BG will be at Closing entitled to transfer the BG Shares with Full Title Guarantee and free from all Third Party Rights on the terms of this Agreement.
|
(g)
|
There is no agreement or commitment by the Seller or BG to give or create any Third Party Right on or over the BG Shares and neither BG nor the Seller has received written notice from any person of a claim to be entitled to any right over or affecting the BG Shares.
|
(h)
|
BG and the Seller’s respective interests in Comgás are fully and correctly reflected in the Foreign Investment registration with the Brazilian Central Bank.
|
(a)
|
The information on Comgás in Schedule 1 is accurate in all material respects.
|
(b)
|
Comgás has no subsidiary undertakings and has not had any subsidiary undertakings.
|
(a)
|
give a true and fair view of the state of affairs of Comgás and its assets and liabilities as at 31 December 2011 and of the results thereof for the financial year ended on 31 December 2011 and would give such a true and fair view taking into account any liabilities of Comgás not known to its directors at the date of the approval of the Last Comgás Accounts; and
|
(b)
|
have been properly prepared in accordance with applicable law and International Financial Reporting Standards in force as at 31 December 2011 as applicable to a company incorporated in Brazil with shares publicly traded on a basis consistent with that adopted in preparing the audited accounts for and during the previous two financial periods for Comgás (subject to any changes in law or applicable accounting standards during the applicable time).
|
(a)
|
entered into any contract which (i) cannot be terminated on less than 12 month’s notice (excluding any customer contracts with a value below US$30 million); or (ii) involved or may involve any revenue, expenditure or payments in excess of US$30 million;
|
(b)
|
conducted its business outside the ordinary course or in a manner inconsistent with past practice;
|
(c)
|
assumed or incurred any liabilities in excess of US$20 million (including contingent liabilities) otherwise than in the ordinary course of carrying on its business consistent with past practice;
|
(d)
|
acquired or disposed of or agreed to acquire or dispose of any business or any material asset with a value in excess of US$20 million;
|
(e)
|
released any debtor on terms that he pays less than the book value of any debt in excess of US$20 million (subject to settlement discounts on the usual terms which have been disclosed to the Purchaser);
|
(f)
|
resolved to change its name or to alter its articles of association, by laws or other constitutional documents;
|
(g)
|
allotted or issued or agreed to allot or issue any shares or any securities or granted or agreed to grant any right which confers on the holder any right to acquire any shares or other securities;
|
(h)
|
declared, paid or made any dividend or other distribution;
|
(i)
|
repaid, redeemed or purchased any of its share capital or loan capital or agreed to do so;
|
(j)
|
reduced its share capital;
|
(1)
|
made, or agreed to make, any material change (including any change by the incorporation, acquisition or disposal of a subsidiary or a business or material assets in any case for a consideration representing open market value) in the nature or extent of its business;
|
(m)
|
created or agreed to create any Third Party Right over any assets of Comgás in excess of US$20 million in favor or any third party;
|
(n)
|
appointed new auditors;
|
(o)
|
made any change in its accounting reference period;
|
(p)
|
made any material change in its accounting policies or practices. nor any revaluation of its property or assets; or
|
(q)
|
carried out any matter set out in Part I of Exhibit 3 to the Comgás Shareholders’ Agreement or any matter set out in paragraphs 1(a), 1(b) or 1(c) of Schedule 6.
|
(a)
|
Except as disclosed in the Disclosure Letter, Comgás does not have outstanding any borrowings, hedges, overdrafts, loan stocks, bonds, debentures, notes or other liabilities owed to any banking, finance, lending or similar institution nor does it have outstanding any other indebtedness or loans to third parties which have arisen otherwise than trading debts incurred in the normal course of business.
|
(b)
|
In relation to any agreement, trust deed, instrument or arrangement under which amounts disclosed under paragraph 2.9(a) are outstanding:
|
|
(i)
|
there has not been any material contravention of or non-compliance with any of its terms by Comgás and as far as BG is aware, no event of default, refinancing event, credit event, default or acceleration of indebtedness has occurred thereunder;
|
|
(ii)
|
as far as BG is aware, no steps for the enforcement of any Third Party Right have been taken or threatened;
|
|
(iii)
|
it is not dependent on the guarantee of, or on any security provided by, a third party; and
|
|
(iv)
|
it is not terminable or subject to any prepayment by reason of the sale of the Shares.
|
(c)
|
Save for (i) any amounts (not exceeding R$600,000 in aggregate) owing under the Commercial Services Agreement and (ii) the amount of US$834,000 owing in connection with the SAP Licenses, there is no outstanding indebtedness of any account whatsoever owing by Comgás to the Seller or any member of the BG Group or by the Seller or any member of the BG Group to Comgás.
|
(d)
|
There is no agreement or obligation to provide and there is not outstanding any guarantee given by Comgás for the benefit of any third party (including the Seller or any member of the BG Group) in respect of an obligation owed by a third party (including the Seller or a member of the BG Group).
|
(e)
|
Neither BG nor any member of the BG Group has entered into any guarantees or indemnities in respect of obligations of Comgás.
|
2.10
|
Material Contracts
|
(a)
|
Comgás is not a party to any industry agreement which involved or may involve any revenue, expenditure or payments in excess of R$223 million or any material contract (or other contract which is otherwise of operational or strategic importance to it) other than an industry agreement which involved or may involve any revenue, expenditure or payments in excess of R$30 million or which:
|
|
(i)
|
is not in the ordinary course of its business consistent with past practice; or
|
|
(ii)
|
is not on arm’s length terms; or
|
|
(iii)
|
(excluding all normal standard industry agreements entered into in the ordinary course of business consistent with past practice and any customer contracts with a value below R$30 million) is of a long term nature (that is, unlikely to have been fully performed in accordance with its terms more than 12 months after the date it was entered into or undertaken, or incapable of termination by it on 12 months’ notice or less without compensation),
|
|
each of these being material contracts for the purposes of this paragraph 2.10.
|
(b)
|
As far as BG is aware, neither Comgás nor any other party to any material contract is currently in breach of or in default in any material respect under, or has improperly terminated, revoked or accelerated, any material contract, and, as far as BG is aware, there exists no condition or event which, after notice or lapse of time, or both, would constitute any such breach, default, termination, revocation or acceleration.
|
(c)
|
As far as BG is aware, the transfer of Shares on the terms of this Agreement will not:
|
|
(i)
|
constitute a default, or trigger any mandatory payments, under any provision of a material contract;
|
|
(ii)
|
relieve any counterpart from a material obligation under a material contract or enable such counterpart to terminate its rights or obligations under a material contract or result in the loss of a material benefit under or require any consent under any material contract; or
|
|
(iii)
|
result in the creation or imposition of any Third Party Right of any nature on any of the material property or material assets of Comgás.
|
(d)
|
Each of the Concession Agreement and the Gas Supply Agreements (the Key Contracts) are in full force and effect. Neither BG nor the Seller has received written notice in the 24 months prior to the date of this Agreement that it is in default under either such agreements and BG is not aware that any other party to such agreements is or has been in the 24 months prior to the date of this Agreement in default under such agreements.
|
(a)
|
At the Locked Box Date, all the assets included in the Last Comgás Accounts were owned by Comgás.
|
(b)
|
As far as BG is aware, other than in the ordinary course of trading consistent with past practice, none of the material property or material assets of Comgás (other than the Properties) is subject to any Third Party Rights.
|
(c)
|
As far as BG is aware, the property, rights and assets owned, leased or licensed by Comgás comprise all the property, rights and assets reasonably necessary for the carrying on of the business of Comgás to the extent to which it is conducted as at the date of this Agreement.
|
(d)
|
As far as BG is aware, the machinery and plant of Comgás that is material to Comgás taken as a whole is in reasonably satisfactory working order and in a reasonable state of repair (subject to fair wear and tear).
|
(a)
|
The Properties are all the properties owned, controlled, used or occupied by Comgás.
|
(b)
|
As far as BG is aware, Comgás has performed and observed all other material obligations under all covenants and conditions affecting any of the Properties.
|
(c)
|
BG has not received written notice of nor is it aware of any material dispute, claims, demands, actions, notices or complaints relating to any of the Properties.
|
(a)
|
As far as BG is aware, Comgás is complying, and has materially complied with, all applicable Environmental Laws and with the terms and conditions of all Environmental Licenses.
|
(b)
|
As far as BG is aware, Comgás has not in the 24 months prior to the date of this Agreement received any notice, claim, complaint or other written communication which claims or alleges that Comgás is in material violation of or liable under any Environmental Law or Environmental License.
|
(c)
|
All material environmental and health and safety audits, assessment, reports and other reviews in possession or control of the Seller or Comgás relating to Comgás or any of Relevant Properties have been disclosed in section 1.8.4 of the Data Room.
|
(a)
|
As far as BG is aware, no activities of Comgás infringe or are reasonably likely to infringe any Intellectual Property Rights owned by any third party and no claim has been made or, to BG’s knowledge, threatened in writing against any Comgás in respect of such infringement.
|
(b)
|
As far as BG is aware, no person is infringing any Intellectual Property Rights owned by Comgás.
|
(c)
|
As far as BG is aware, Comgás owns or is licensed to use all Intellectual Property Rights necessary for the operation of the business of Comgás as carried on at the date of this Agreement and such Intellectual Property Rights will not be adversely affected by reason of the Proposed Transaction.
|
(d)
|
As far as BG is aware, the Information Technology systems owned by or licensed to Comgás comprise all material computer hardware and software systems used in the operation of the business of Comgás as carried on at the date of this Agreement and such Information Technology systems will not be adversely affected by reason of the Proposed Transaction.
|
(e)
|
As far as BG is aware, Comgás is not in material breach of any material agreement relating to Information Technology.
|
(a)
|
As far as BG is aware, Comgás has complied with its statutory and contractual obligations in all material respects to its employees and former employees.
|
(b)
|
Comgás does not have any undischarged liability to pay compensation for loss of office or employment or otherwise to present or former employees in excess of, in aggregate, US$10 million.
|
(c)
|
There is no term of employment for any employee of Comgás which provides that a change in control of Comgás entitles the employee to treat the change of control as amounting to a breach of his / her contract or entitling him to any payment, additional period of notice or other benefit whatsoever, or entitling him to treat himself as redundant or otherwise dismissed or released from any obligation.
|
(d)
|
Since 31 December 2011, no material change has been made in the rate of the emoluments of any employee of Comgás which would increase the total aggregate remuneration payable to all employees by more than 10% (other than in accordance with past practice or any collective bargaining agreements).
|
(e)
|
Comgás is not proposing to introduce any new (i) share incentive, share option, or other share incentive arrangement, or (ii) material bonus or other incentive scheme for any employee of Comgás.
|
(f)
|
As far as BG is aware, the aggregate amount of all amounts claim.in relation to existing or threatened (in writing) applications to any employment tribunal or court or any pending appeal from any such tribunal or court, made by an employee or former employee in relation to their employment or former employment by or with Comgás, is less than US$10 million.
|
(g)
|
There is not, and during the 18 months prior to the date of this Agreement there has not been, any industrial action adversely affecting Comgás and BG is not aware of any circumstance which might give rise to industrial action against Comgás.
|
(h)
|
Comgás has not agreed or announced or provided in its accounts for any redundancies to take effect on any date after 31 December 2011.
|
(a)
|
Other than the Disclosed Schemes, and any mandatory social security arrangements or industry-wide plans operated under and in accordance with public law, statute or regulation, there is not in operation any agreement (formal or informal) or arrangement for the payment by Comgás of, or payment by Comgás of a contribution towards, a pension, allowance or lump sum on retirement, termination or death for the benefit of an employee, a former employee or a dependent of such a person;
|
(b)
|
in respect of the Defined Contribution Scheme, all amounts which are due and payable by Comgás have been paid and no guarantee has been given to any Employee or former employee of a particular level or amount of benefits to be provided for or in respect of him other than coverage of risk benefits as described in the Data Room;
|
|
(i)
|
the Disclosed Schemes have been operated in all material respects in compliance with their terms (including the provisions set down in their governing documentation) and all applicable laws and other relevant requirements of a competent Governmental Entity;
|
|
(ii)
|
there are no material actions, suits or claims (other than routine claims for benefits) outstanding or so far as BG is aware, threatened in writing against the Disclosed Schemes; and
|
|
(iii)
|
no material plan or proposal or intention to amend or discontinue in whole or in part has been communicated to any member of the scheme by the scheme or Comgás; and
|
(d)
|
Comgás has not at any time participated in or been liable to contribute to any private pension scheme other than the Disclosed Schemes.
|
(a)
|
All the tangible assets which are material to Comgás and which are capable of being insured (other than those where a third party is liable to insure such assets) are insured and all premiums due on such insurance Policies (the Policies) have been paid. No claim exceeding US$20 million is outstanding either by the insurer or the insured under any of the Policies.
|
(b)
|
As far as BG is aware, (i) the Policies are currently in full force and effect, and (ii) nothing has been done or omitted to be done which could make any Policy void or voidable.
|
(a)
|
As far as BG is aware, Comgás is not involved as a party or otherwise in any litigation, arbitration, administrative or other dispute resolution proceedings and, as far as BG is aware, no such proceedings have been threatened in writing by or against Comgás that are material to Comgás.
|
(b)
|
There is no outstanding judgment, order, decree, arbitral award or decision of any court, tribunal, arbitrator or Governmental Entity against Comgás that is material to it.
|
(c)
|
BG is not aware of any matter, fact or circumstance which is likely to give rise to any litigation, arbitration, prosecution or other legal or dispute resolution proceedings by or against Comgás that in each case are or could reasonably be expected to be material to Comgás.
|
(a)
|
As far as BG is aware, Comgás is conducting and has in the 6 years prior to the date of this Agreement conducted its business and corporate affairs in all material respects in accordance with (i) its memorandum and articles of association, by-laws or other equivalent constitutional documents; and (ii) all applicable laws and legally binding regulations and by-laws of its country of incorporation and any other in jurisdiction in which it carries out its business.
|
(b)
|
There has been no default by Comgás under any order, decree or judgment of any court or any Governmental Entity in its country of incorporation or any other in jurisdiction in which it carries out its business where such default is likely to have a cost of US$20 million or more.
|
(c)
|
As far as BG is aware, all registers and minute books required by law to be kept by Comgás have been properly written up and contain a record of the matters which should, by law, be recorded in them.
|
(d)
|
As far as BG is aware, all material returns and particulars, resolutions and other documents which Comgás is required by law to file with or deliver for registration in any jurisdiction have been correctly made up and duly filed and delivered.
|
(e)
|
Comgás has not been notified that any investigation, enquiry or enforcement proceedings in respect of its affairs is being or has been conducted by any Governmental Entity (excluding any ordinary course or routine investigation or enquiry where the maximum exposure of Comgás is likely to be less than US$20 million) and, as far as BG is aware, there are no circumstances which currently exist and are likely to give rise to any such investigation, enquiry or proceedings, in each case which is material to Comgás.
|
(f)
|
As far as BG is aware, there has been no material default by Comgás under any rule or order issued by the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliarios CVM) and BM& FBOVESPA.
|
(a)
|
Comgás has obtained all material licenses, permissions, consents and other approvals (together Comgás Permits) and made all material filings required for or in connection with the carrying on of its business in the places and in the manner in which its business is carried on as at the date of this Agreement.
|
(b)
|
No Comgás Permit has been breached in any material respect and, as far as BG is aware, no facts exist that are likely to, and the Proposed Transaction is not reasonably likely to, result in the revocation, suspension, cancellation or modification of any of those Comgás Permits or that might prejudice their renewal.
|
(a)
|
As far as BG is aware, all material tax computations and returns have been made by Comgás within relevant time limits to the Federal Revenue of Brazil or other relevant taxation authority (Tax Authority) and were and remain true and accurate in all material respects, are not the subject of any material dispute and are not likely to become the subject of any material dispute with such Tax Authorities.
|
(b)
|
As far as BG is aware, Comgás has prepared, kept and preserved all records required by applicable law to be so prepared, kept and preserved and such records are complete, accurate and up-to-date in all material respects.
|
(a)
|
in the case of a General Warranty Claim (other than a claim for breach of one or more of the Warranties in paragraph 3 of Part A in Schedule 2 to this Agreement), the date that is 21 months after the Closing Date; or
|
(b)
|
in the case of a Fundamental Warranty Claim or a Tax Claim, the date that is 6 years after the Closing Date.
|
(a)
|
unless the amount of the liability pursuant to that single General Warranty Claim or claim under the Tax Deed (other than a claim under clause 2.4 of the Tax Deed) exceeds an amount equal to USD I million (in which case the Purchaser shall be able to claim for the full amount and not just the excess); and
|
(b)
|
in relation to General Warranty Claims, unless the aggregate amount of the liability of BG for all General Warranty Claims and claims under the Tax Deed (other than a claim under clause 2.4 of the Tax Deed) not excluded by sub paragraph 2(a) exceeds an amount equal to USD 20 million (in which case the Purchaser shall be able to claim for the full amount and not just the excess); and
|
(c)
|
in relation to claims under the Tax Deed (other than a claim under clause 2.4 of the Tax Deed), unless either: (i) the aggregate amount of the liability of BG for all claims under the Tax Deed (other than a claim under clause 2.4 of the Tax Deed) not excluded by sub paragraph 2(a) exceeds an amount equal to USD 10 million; or (ii) the aggregate amount of the liability of BG for all General Warranty Claims and claims under the Tax Deed (other than a claim under clause 2.4 of the Tax Deed) not excluded by sub paragraph 2(a) exceeds an amount equal to USD 20 million (where in either such case the Purchaser shall be able to claim for the full amount and not just the excess).
|
(a)
|
the fact, matter, event or circumstance giving rise to such General Warranty Claim is fairly disclosed by this Agreement, any other Transaction Document, the Data Room or the Disclosure Letter; or
|
(b)
|
all of the following apply:
|
|
(i)
|
the fact, matter, event or circumstance which is the subject matter of the General Warranty Claim occurs or arises after the date of this Agreement, other than as result of or in connection with a breach of clauses 5 (No Leakage Covenant) and/or 6 (Pre-Closing Undertakings);
|
|
(ii)
|
the existence or likely occurrence of the relevant fact, matter, event or circumstance was not known by BG at the date of this Agreement;
|
|
(iii)
|
such relevant fact, matter, event or circumstance is fairly disclosed in the Closing Disclosure Letter; and
|
|
(iv)
|
the fact, matter, event or circumstances which is the subject letter of the General Warranty Claim does not, and could not be reasonably .expected to, cause or give rise to a General Warranty Claim or series of General Warranty Claims which, when aggregated with any other General Warranty Claims caused by or arising from facts, matters, events or circumstances falling within sub-paragraphs (i) to (iii) above exceed US$40 million.
|
(a)
|
after Closing by the Purchaser or any member of the Purchaser Group (or its respective directors, employees or agents or successors in title) outside the ordinary and usual course of business of Comgás as at Closing; or
|
(b)
|
before Closing by any member of the BG Group, the Seller or Comgás at the written request of the Purchaser or any member of the Purchaser Group.
|
|
(i)
|
promptly notify BG or the BG Guarantor (as appropriate) of the fact and provide such information as BG or the BG Guarantor (as appropriate) may reasonably require (ii) subject to the Purchaser and each member of the Purchaser Group being paid all reasonable costs and expense and indemnified to their reasonable satisfaction for any liabilities, take such reasonable steps as BG or the BG Guarantor (as appropriate) may reasonably request to enforce such right, provided that the Purchaser (or relevant member of the Purchaser Group) shall not be required to initiate any proceedings or take any action that may prejudice its bona fide commercial interests and (iii) pay to BG or the BG Guarantor (as appropriate) as soon as practicable after receipt an amount equal to (x) the amount recovered by the Purchaser from the third party, or (y) the Purchaser Proportion of the amount recovered by Comgás from the third party, in each case net of taxation and less any reasonable costs of recovery.
|
(a)
|
duly execute any and all documents required by the depositary agent of the Shares in order to formalise the transfer of the Shares from the Seller to the Purchaser; and
|
(b)
|
communicate to Comgás any information necessary to comply with applicable securities regulations.
|
(a)
|
a letter of resignation in the Agreed Form from each director of Comgás appointed by BG (as may be notified by the Purchaser not later than the Unconditional Date) resigning from his office as a member of the board with effect from the transfer of the Shares and acknowledging that he has no claims against the relevant company;
|
(b)
|
minutes of a meeting of board of directors of Comgás nominating, ad referendum of the shareholders of Comgás, the directors as informed by the Purchaser to BG prior to or on the Unconditional Date and acknowledging the resignation from the Comgás board of the directors appointed by BG as per clause 6.7;
|
(c)
|
a copy (certified by a duly appointed officer as true and correct) of a resolution of the board and/or supervisory board (as necessary to provide valid authorization) of directors of the Seller (or, if required by the law of its jurisdiction or its articles of association, by-laws or equivalent constitutional documents, of its shareholders) authorizing the execution of and the performance by it of its obligations under this Agreement and each of the Transaction Documents to be executed by it;
|
(d)
|
a copy (certified by a duly appointed officer as true and correct) of a resolution of the board and/or supervisory board (as necessary to provide valid authorization) of directors of BG (or, if required by the law of its jurisdiction or its articles of association, by-laws or equivalent constitutional documents, of its shareholders) authorizing the execution of and the performance by it of its obligations under this Agreement and each of the Transaction Documents to be executed by it;
|
(e)
|
a copy (certified by a duly appointed officer as true and correct) of a resolution of the board of directors of the BG Guarantor authorizing the execution of and the performance by it of its obligations under this Agreement and each of the Transaction Documents to be executed by it;
|
(g)
|
an agreement in the Agreed Form duly executed by Comgás and BG International Services AB terminating the Commercial Services Agreement; and
|
(h)
|
an updated statement of the shareholders’ register of Comgás issued by the depositary agent of the Shares and the BG Shares reflecting the transfer of the Shares and the BG Shares from the Seller to the Purchaser.
|
(a)
|
duly execute any and all documents required by the depositary agent of the Shares in order to formalise the transfer of the Shares from the Seller to the Purchaser;
|
(b)
|
duly execute any and all documents required by the depositary agent of the BG Shares in order to formalise the transfer of the BG Shares from BG to the Purchaser;
|
(c)
|
deliver (or ensure that there is delivered to BG) a copy of a resolution (certified by a duly appointed officer as true and correct) of the board and/or supervisory board (as necessary to provide valid authorization) of directors of each of the Purchaser and the Purchaser Guarantor (or, if required by the law of its jurisdiction or its articles of association, by-laws or equivalent constitutional documents, of its shareholders) authorizing the execution of and the performance by the relevant company of its obligations under this Agreement and each of the Transaction Documents to be executed by it;
|
(d)
|
deliver (or ensure that there is delivered to the BG) a duly executed Tax Deed;
|
(e)
|
deliver (or ensure that there is delivered to BG) a copy (certified by a duly appointed officer as true and correct) of a duly-executed deed of adherence in the Agreed Form to the Concession Agreement;
|
(f)
|
subject to clause 2.4, pay the Dollar Price Equivalent to the Seller in full discharge and satisfaction of the Purchaser’s obligation to pay the Price at Closing; and
|
(g)
|
subject to clause 2.4, pay the US dollar equivalent of R$2,362.50 to BG for the BG Shares (the BG Shares Dollar Price Equivalent), applying the PTAX Ask Rate published by BACEN on the second Business Day prior to the Closing Date, in full discharge and satisfaction of the Purchaser’s obligation to pay the consideration for the BG Shares at Closing.
|
(a)
|
delivery of all documents and all items required to be executed and/or delivered at Closing (or waiver of the delivery of it by the person entitled to receive the relevant document or item); and
|
(b)
|
receipt of an electronic funds transfer to such bank account as the Seller (in the case of the Dollar Price Equivalent) and BG (in the case of the BG Shares Dollar Price Equivalent) may nominate for the purpose at least 5 Business Days prior to Closing in immediately available funds of the
|
Dollar Price Equivalent and the BG Shares Dollar Price Equivalent (in each case subject to the withholding made in accordance with clause 2.4),
|
(a)
|
declare, make, or pay (i) any non-cash dividend; or (ii) any other non-cash distribution; or (iii) any cash dividend or distribution;
|
(b)
|
enter into or settle any litigation which is material to Comgás;
|
(c)
|
fail to comply with, and perform its obligations under all material contracts, all applicable laws, and all permits held by Comgás, except in each case where failure to comply or perform would not, individually or in the aggregate, be reasonably likely to result in a potential liability to Comgás of in excess of USD 20 million;
|
(d)
|
amend the Comgás Articles;
|
(e)
|
undertake any merger, consolidation, similar amalgamation or other corporate restructuring of Comgás;
|
(f)
|
dissolve, liquidate or otherwise wind-up Comgás;
|
(g)
|
issue any new or additional shares or other securities convertible into ·equity, debentures or loan stock, options to subscribe for or acquire the same, the creation of any new class of shares or modification of the rights of any class of shares, the modification of the equity capital structure of Comgás or the incorporation or capitalization of any subsidiary of Comgás;
|
(h)
|
establish or modify any dividend and/or capital policies of Comgás or take any decision for the approval or ratification of dividend distributions (beyond dividends or distributions contemplated in the Business and Financing Plan) or capital retentions;
|
(i)
|
make any decision by Comgás not to apply for a renewal of its Concession Contract upon its expiry;
|
(j)
|
enter into any joint venture or partnership involving Comgás;
|
(k)
|
grant any guarantee or indemnity or allow Comgás to become surety for any third party (other than in the ordinary course of business of Comgás);
|
(1)
|
execute, renew, terminate or materially amend or modify any transaction or agreement or series of related transactions or agreements by Comgás with BG or Shell or an Affiliate of BG or Shell;
|
(m)
|
revise the terms of the Concession Contract upon its renewal; or
|
(n)
|
approve the annual budget and any deviations thereof greater than the equivalent in Reais of US$10 million or 10% of any budgeted item (provided such deviation is at least the equivalent in Reais of US$10 million); or
|
(o)
|
agree, conditionally or otherwise, to do any of the foregoing.
|
(a)
|
approve the financial statements of Comgás for the previous financial year;
|
(b)
|
approve the capital expenditure budget of Comgás for the current year;
|
(c)
|
undertake any material action or undertaking of any business by Comgás outside the regular course of business of Comgás;
|
(d)
|
appoint or remove the independent auditors of Comgás;
|
(e)
|
change the responsibilities of any of the officers of Comgás from those stated (if any) in the Comgás Articles;
|
(f)
|
create any committee of the Comgás board of directors;
|
(g)
|
other than the current Business and Financing Plan, approve any business plans, financing plans and any longer term strategic plans, including any revisions thereto;
|
(h)
|
enter into any gas purchase agreements in excess in total value of the equivalent in Reais equivalent of US$150 million;
|
(i)
|
undertake or enter into any acquisition or series of related acquisitions by_ Comgás of another business or material part thereof or an interest in another company involving consideration with a value in excess of the equivalent in Reais to US$10 million;
|
(j)
|
adopt or amend the business and health, safety and environmental principles by the Comgás board of directors or adopt or ratify a detailed health, safety and environment, procurement, accounting and business control procedures by the Comgás internal audit or HSE committees;
|
(k)
|
undertake or enter into any sale or other transfer (or series of related sales or transfers) of assets by Comgás with a value in excess of the US$10 million;
|
(l)
|
acquire, construct or lease items of tangible or intangible property exceeding an estimated expenditure of the equivalent in Reais of US$10 million in any single transaction or series of related transactions that (a) are not approved as part of the annual budget and (b) are unable to be re-allocated from expenditure approved under the latest approved annual budget; or
|
(m)
|
enter into any loan with a term of more than 1 year.
|
(a)
|
neither the Seller or Comgás shall be treated as an Affiliate of BG or the BG Guarantor, before or after Closing; and
|
(b)
|
Comgás shall be an Affiliate of the Purchaser with effect from Closing;
|
(a)
|
the ongoing administrative proceeding (Processo Administrativo Sancianador) number RJ 2011/7923 issued by the Comissão de Valores Mobiliários against Integral (including any appeals) (the CVM Proceedings);
|
(c)
|
any claims in relation to the matters, facts, circumstances or events the subject of the CVM Proceedings, including the “Redemption Mechanism” (as defined in the document set out in section 3.1 of the Data Room); and
|
(d)
|
any vicarious liability of Comgás for the actions or inactions of any directors, officers or employees of Comgás in relation to any of the above;
|
(a)
|
the agreement executed between Petroleo Brasileiro S.A. (Petrobras) and Comgás on 18 December 2007, providing the general terms of all gas supply arrangements with Petrobras except for the arrangement at (b) below;
|
(b)
|
the agreement executed between Petrobras and Comgás on 29 October 1996, as amended, known as the ‘TCQ’ arrangement;
|
(c)
|
the agreement executed between Petrobras and Comgás on 18 December 2007, as amended, known as the ‘Firme’ arrangement;
|
(d)
|
the agreement executed between, Petrobras and Comgás on 18 December 2007, known as the ‘Firme Flexivel’ arrangement;
|
(e)
|
the agreement executed between Gas Brasiliano Distribuidora S.A and Comgás on 2 July 2007, known as the ‘Tarnbau’ arrangement;
|
(f)
|
the agreement executed between Petrobras and Comgás on 19 March 2012, known as the ‘Leilão’ arrangement;
|
(g)
|
the agreement executed between Petrobras and Comgás on 21 January 2006, known as the ‘Corn’ arrangement;
|
(h)
|
the agreement executed between Piratininga, Petrobras and Comgás on 14 July 2005, as amended, known as the ‘Corn’ arrangement; and.
|
(i)
|
the agreement executed between, Petrobras and Comgás on 29 March 2012, known as the ‘Curtissimo Prazo’ arrangement;
|
(a)
|
copyright, patents, goodwill, know-how, trade secrets, data base rights, trade marks, trade names, business names, domain names, logos, get-up and designs (whether registered or unregistered);
|
(b)
|
applications for registration (including all corresponding foreign counterpart applications, re-issues, re-examinations, divisionals, continuations (including part and extensions thereof)) and the right to apply for registration for any of the same; and
|
(c)
|
all other intellectual property rights and equivalent or similar forms of protection, howsoever described, existing anywhere in the world;
|
(a)
|
any non-cash dividend or distribution declared, paid, made or agreed or required to be made by Comgás to the Seller;
|
(b)
|
the issue or sale of any securities of Comgás to the Seller or BG or any of its Affiliates;
|
(c)
|
any assets transferred to the Seller or BG or any or) my of its Affiliates by Comgás at below market value, including any agreement or other obligation to take any such action;
|
(d)
|
any liabilities assumed, indemnified or incurred for or to the benefit of the Seller or BG or any or any of its Affiliates by Comgás, including any agreement or other obligation to take any such action (excluding for the avoidance of doubt under any Transaction Document entered into at Closing);
|
(e)
|
any fees, bonuses or expenses connected to the Proposed Transaction to the extent paid, payable, assumed, indemnified or incurred by Comgás;
|
(f)
|
any payments made, or agreed to be made by Comgás to the Seller or BG or any of its Affiliates in respect of the issue, redemption, repurchase, repayment or acquisition of any share capital or other securities of Comgás, or any other return of capital to the Seller by Comgás;
|
(g)
|
the waiver or agreement to waive by Comgás of (i) any amount owed to Comgás by the Seller or BG or by any of its Affiliates, or (ii) any claims by Comgás in respect of any agreement or arrangement with the Seller or BG or any of its Affiliates;
|
(h)
|
the entry into by Comgás of any transactions outside the ordinary course of business for the benefit of the Seller or BG or any or any of its Affiliates (excluding for the avoidance of doubt under any Transaction Document entered into at Closing); and
|
(i)
|
the payment or agreement to pay by Comgás of any third party fees, third party costs or Tax arising as a result of those matters set out in subsections (a) to (h) above,
|
(a)
|
any material breach of any of the Fundamental Warranties when deemed to be repeated immediately prior to Closing;
|
(b)
|
the revocation or termination of the Concession Agreement; or
|
(c)
|
any event or events which:
|
|
(A)
|
a reduction in the value of Comgás’ net assets in excess of US$400 million provided that (x) no profits of Comgás earned or accrued in the period after the date of this Agreement shall be taken into account in determining net assets and (y) no account shall be taken of any loss, damage, costs or liability arising from the event or events to the extent that it has been remedied immediately prior to Closing; or
|
|
(B)
|
a reduction in the market value of Comgás in excess of US$400 million (provided that for the purposes of determining market value of Comgás, no account shall be taken of public market prices of Comgás securities); and
|
|
(A)
|
changes in interest rates, exchange rates or securities or commodity prices or in economic, financial, market or political conditions generally;
|
|
(B)
|
changes in conditions generally affecting the natural gas distribution industry generally, except to the extent such change, effect, event, occurrence or state of facts disproportionately affects the São Paulo State or Comgás;
|
|
(C)
|
changes in laws, regulations or accounting practices, except to the extent such change, effect, event, occurrence or state of facts disproportionately affects Comgás;
|
|
(D)
|
any transaction contemplated by any of the Transaction Documents or any change in control resulting from any such transaction;
|
|
(E)
|
any act or omission of any member of the Purchaser Group; or
|
|
(F)
|
any act or omission of any member of the BG Group or the Seller or Comgás at the prior written request or with the prior written consent of the Purchaser; and
|
(a)
|
any payments made by Comgás to BG or any of its Affiliates on arm’s length terms in the ordinary course of trading (including, for the avoidance of doubt, any payments (not exceeding R$600,000) in aggregate made pursuant to the Commercial Services Agreement or the aggregate annual maintenance fees of US$834,000 owed in respect of the SAP Licenses);
|
(b)
|
any payments made by Comgás in January 2012 in respect of the R$5.3 million interest on equity owed to its shareholders from the financial year ended 31 December 2011; and
|
(c)
|
any dividends comprised in the Dividend Amounts,
|
(a)
|
Fato Relevante relating to European Investment Bank second tranche financing, dated 25 November 2010;
|
(b)
|
Comunicado relating to studies in connection with a potential migration to Novo Mercado, dated 19 October 2011;
|
(c)
|
Fato Relevante relating to the conclusion of the studies in connection with the potential migration to Novo Mercado, dated 2 December 2011;
|
(d)
|
Fato Relevante relating to the second tranche of commercial promissory notes, dated 15 February 2012; and
|
(e)
|
Fato Relevante relating to information provided by the controlling shareholder about discussions of a potential sale of shares to the Purchaser, dated 12 April 2012;
|
(a)
|
Order 10184770 for 176 Professional, 26 Limited Professional and 202 iTutor licenses;
|
(b)
|
Order 10298200 for 21 Professional and 21 Limited Professional licenses; and
|
(c)
|
Order 10334710 for 10 mobile licenses;
|
2.
|
Interpretation. In this Agreement, unless the context otherwise requires:
|
(a)
|
references to a person include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (whether or not having separate legal personality);
|
(b)
|
headings do not affect the interpretation of this Agreement; the singular shall include the plural and vice versa; and references to one gender include all genders;
|
(c)
|
references to any English legal term or concept shall, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction;
|
(d)
|
the expressions parent undertaking and subsidiary undertaking shall have the meaning given in sections 1162 and 1161 of the Companies Act 2006;
|
(e)
|
the parties acknowledge that they have participated jointly in the negotiation and drafting of this Agreement and, in the event that a question of interpretation arises (including as to the intention of the parties), no presumption or burden of proof shall arise in favor or against any party based on the authorship of any provisions;
|
(f)
|
references to Reais or R$ are references. to the lawful currency from time to time of Brazil;
|
(g)
|
references to US$ or US dollars are references to the lawful currency from time to time of the United States of America;
|
(h)
|
any statement in this Agreement qualified by the expression as far as BG is aware or to the best of the BG’s knowledge or to the knowledge of BG or any similar expression shall be deemed only to be made on the basis of the actual knowledge of BG at the date of this Agreement or immediately prior ,to Closing (as applicable) provided that a matter shall be deemed to be within the actual awareness and knowledge of BG if it:
|
|
(i)
|
is within the knowledge, information or belief of (A) any director of BG, (B) any BG-appointed director of the Seller or (C) any member of the BG Deal Team (or any persons occupying the equivalent positions of members of the BG Deal Team between the date of this Agreement and Closing) or (D) in relation only to the Tax Warranties, the BG Tax Team (or any persons occupying the equivalent positions of members of the BG Tax Team between the date of this Agreement and Closing) (the persons referred to in (A) to (D) together the BG Awareness Team); and
|
|
(ii)
|
without prejudice to sub-paragraph (i) above, in relation to the Integral Warranties deemed to be repeated immediately prior to Closing, would have been within the knowledge, information or belief of members of the BG Awareness Team if they had made substantially similar preparations and enquiries to those made by the BG Awareness Team prior to signing;
|
(i)
|
any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
|
SIGNED
for and on behalf of
INTEGRAL
INVESTMENTS B.V.
|
)
|
SIGNATURE:
|
/s/ Ben Miller
|
)
|
|||
)
|
|||
)
|
NAME:
|
Ben Miller
|
SIGNED
for and on behalf of
BG GAS SÃO PAULO
INVESTMENTS B.V.
|
)
|
SIGNATURE:
|
/s/ Ben Miller
|
)
|
|||
)
|
|||
)
|
NAME:
|
Ben Miller
|
SIGNED
for and on behalf of
BG
ENERGY HOLDINGS LIMITED
|
)
|
SIGNATURE:
|
/s/ Ben Miller
|
)
|
|||
)
|
|||
)
|
NAME:
|
Ben Miller
|
SIGNED
for and on behalf of
PROVENCE PARTICIPAÇÕES S.A.
|
)
|
SIGNATURE:
|
/s/Marcos H. Lutz
|
)
|
NAME:
|
Marcos H. Lutz
|
|
)
|
SIGNATURE:
|
/s/ Marcelo S.S. Portela
|
|
)
|
NAME:
|
Marcelo S.S. Portela
|
SIGNED
for and on behalf of
COSAN S.A. INDÚSTRIA
E COMÉRCIO
|
)
|
SIGNATURE:
|
/s/Marcos H. Lutz
|
)
|
NAME:
|
Marcos H. Lutz
|
|
)
|
SIGNATURE:
|
/s/ Marcelo S.S. Portela
|
|
)
|
NAME:
|
Marcelo S.S. Portela
|
Name
|
Jurisdiction of Incorporation
|
|
Anniston Pte. Ltd
|
Singapore
|
|
Commonwealth Carriers S.A.
|
British Virgin Islands
|
|
Island S Management Corp
|
British Virgin Islands
|
|
Broeder Limited
|
British Virgin Islands
|
|
Cosan S.A. Indústria e Comércio
|
Brazil
|
|
Administração de Participações Aguassanta Ltda.
|
Brazil
|
|
Nova Agrícola Ponte Alta S.A.
|
Brazil
|
|
Vertical UK LLP
|
British Virgin Islands
|
|
Águas da Ponte Alta S.A.
|
Brazil
|
|
Vale da Ponte Alta S.A.
|
Brazil
|
|
Barrapar Participações S.A.
|
Brazil
|
|
Aliança Indústria e Comércio de Açúcar e Álcool S.A.
|
Brazil
|
|
Bioinvestments Negócios e Participações S.A.
|
Brazil
|
|
Proud Participações S.A.
|
Brazil
|
|
Cosan Overseas Limited
|
Cayman Islands
|
|
Pasadena Empreendimentos e Participações S.A.
|
Brazil
|
|
Cosan Cayman II Limited
|
Cayman Islands
|
|
Cosan Trading S.A.
|
Brazil
|
|
Novo Rumo Logística S.A.
|
Brazil
|
|
Cosan Biomassa S.A.
|
Brazil
|
|
Usina Santa Luiza S.A.
|
Brazil
|
|
Raízen S.A.
|
Brazil
|
|
Raízen Energia Participações S.A.
|
Brazil
|
|
Raízen Combustíveis S.A.
|
Brazil
|
|
Rumo Logística Operadora Multimodal S.A. (former Cosan Operadora Portuária S.A.)
|
Brazil
|
|
Logispot Armazéns Gerais S.A.
|
Brazil
|
|
Cosan Lubrificantes e Especialidades S.A.
|
Brazil
|
Cosan Cayman Finance Limited
|
Cayman Islands
|
|
CCL Cayman Finance Limited
|
Cayman Islands
|
|
Stallion Sociedade Anonima
|
Paraguay
|
|
Novvi S.A.
|
Brazil
|
|
Radar Propriedades Agrícolas S.A.
|
Brazil
|
|
Tellus Participações S.A.
|
Brazil
|
|
Companhia de Gás de São Paulo - COMGÁS
|
Brazil
|
|
Cosan Lubes Investment Limited
|
Brazil
|
|
Comma Oil Chemicals
Raízen Energia S.A.
Cosan U.S.
Radar II Propriedades Agrícolas S.A.
Cosan Global Limited
Aldwych Temple Business Venture Company Ltd.
Terras da Ponte Alta S.A.
Nova Santa Bárbara Agrícola S.A.
Nova Amaralina S.A. Propriedades Agrícolas
Cosan Infraestrutura S.A.
|
England
Brazil
United States
Brazil
Cayman Islands
British Virgin Islands
Brazil
Brazil
Brazil
Brazil
|
|
a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
c)
|
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
d)
|
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
|
a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
|
|
b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
By:
|
/s/ Rubens Ometto Silveira Mello
|
||
Name: |
Rubens Ometto Silveira Mello
|
||
Title: |
Chief Executive Officer
|
|
a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
c)
|
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
d)
|
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
|
a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
|
|
b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
By:
|
/s/ Marcelo Eduardo Martins
|
||
Name: |
Marcelo Eduardo Martins
|
||
Title: |
Chief Financial and Investor Relations Officer
|
By:
|
/s/ Rubens Ometto Silveira Mello
|
||
Name: |
Rubens Ometto Silveira Mello
|
||
Title: |
Chief Executive Officer
|
By:
|
/s/ Marcelo Eduardo Martins
|
||
Name: |
Marcelo Eduardo Martins
|
||
Title: |
Chief Financial and Investor Relations Officer
|