VOTORANTIM
CELULOSE E PAPEL S.A
a
publicly-held company
CNPJ/MF:
60.643.228/0001-21
NIRE:
35.300.022.807
SUMMARY
MINUTES OF THE CONTINUATION OF THE EXTRAORDINARY GENERAL MEETING
CALLED
FOR AUGUST 24, 2009
(a free
translation from the original in Portuguese filed with the
Comissão de Valores
Mobiliários
(CVM), the Brazilian Securities and Exchange
Commission)
This
notice is not an offer to sell or an offer to buy securities in the United
States. Any transactions involving offers of securities referred to
in this notice cannot, and will not, be carried out by VCP, Aracruz or any of
their respective affiliates absent registration or an exemption from
registration. The stock swap merger is being conducted in Brazil
pursuant to the Brazilian Corporation Law. It involves securities of
Brazilian companies and is subject to disclosure requirements that are different
from those of the United States. The stock swap merger is being
conducted pursuant to exemptions from registration provided under the U.S.
Securities Act of 1933, as amended. The new VCP common shares that
will be distributed to Aracruz shareholders in connection with the stock swap
merger, if approved, have not yet been registered with the Securities and
Exchange Commission, or the SEC. If the stock swap merger is
approved, VCP intends to (1) register with the SEC under the US Securities
Exchange Act of 1934, as amended, the new VCP common shares and (2) submit a
listing application to the New York Stock Exchange for the new VCP ADSs that, in
each case, will be distributed to holders of Aracruz shares and ADSs,
respectively, as a result of the stock swap merger.
Neither Aracruz nor VCP or any of
their respective affiliates is asking you to send them a proxy and you are
requested not to send a proxy to Aracruz, VCP or any of their respective
affiliates.
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I.
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DATE,
HOUR AND VENUE
: Held on August 26, 2009 at 2:00 p.m. at
the Company’s headquarters at Alameda Santos, 1,357, 8th floor, in the
city of São Paulo, State of São
Paulo.
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II.
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ATTENDANCE
:
The same shareholders who were present when the meeting began on August
24, 2009, representing more than two-thirds of the Company’s stock as
shown by the signatures in the Shareholder Attendance Register, were
present at the reopening of the
meeting.
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Those
in attendance included the following: Paulo Prignolato, Officer of Finance
of Investor Relations; André Luiz Gon
çalves, representing
Aracruz Celulose S.A. (“
Aracruz
”);
Samuel de Paula Matos and João Carlos Hopp, members of the Fiscal Council
(
Conselho
Fiscal
); Rogério Villa, representing Terco Grant Thornton; Luis
Augusto Motta Pinto da Luz, representing KPMG Corporate Finance Ltda.; and
Osvaldo Roberto Nieto, representing Baker Tilly Brasil – ES Auditores
Independentes Ltda. (“
Baker
Tilly
”).
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III.
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CALL
OF MEETING:
The Notice of Meeting published in the
Diário Oficial do Estado de
São Paulo
and in the magazine
Valor Econômico
on June
24, 27 and 28, 2009.
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IV.
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PRESIDING
:
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Maria
Lucia Cantidiano - President
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|
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Rodrigo
Piva Menegat - Secretary
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V.
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AGENDA
:
(i) analyze, discuss
and approve the Stock Swap Merger Protocol for the stock swap merger of
Aracruz with Votrantim Celulose e Papel S.A. (“
VCP
” or the
“
Company
”) (the
“
Stock Swap
Merger
”), dated July 21, 2009, between the Company, as acquirer
(
incorporadora
),
and Aracruz, as target (
incorporada
), (
Protocolo e Justificação de
Incorporação de Ações
, or “
Stock Swap Merger
Protocol
”) which will be accompanied by other relevant documents,
and to take note of the opinion of the Company’s Fiscal
Council;
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(ii) ratify
the retention of the following specialized firms: (i) Baker Tilly, which
has been responsible for the valuation of the Aracruz shares to be merged into
the Company’s asset base, and (ii) KPMG Corporate Finance Ltda., which has
been responsible for the valuation of the shareholders’ equity of the Company
and Aracruz at market value for the purposes of Article 264 of Law no. 6,404/76
(“
Brazilian
Corporation Law
”);
(iii) approve
the valuation report prepared by Baker Tilly;
(iv) analyze,
discuss and approve the Stock Swap Merger ratio for the exchange of the Aracruz
shares for newly-issued VCP shares, as a result of which Aracruz will become a
wholly owned subsidiary of the Company;
(v) approve
the Stock Swap Merger of Aracruz with VCP pursuant to the terms and conditions
of the Stock Swap Merger Protocol;
(vi) approve,
as a result of the Stock Swap Merger, an increase in the capital stock of the
Company pursuant to item 2.11 of the Stock Swap Merger Protocol;
(vii) authorize
the Company’s management to take all measures necessary for the consummation of
the Stock Swap Merger;
(viii) dismiss
and elect members of the Board of Directors of the Company; and
(ix) amend
the lead paragraph of Article 5 of the Company’s By-laws.
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VI.
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PRESENTATION
OF DOCUMENTS, CASTING OF VOTES AND TRANSCRIPTION OF THE MINUTES:
(1) The reading of the documents related to the matters to be voted at
this Extraordinary General Meeting was waived, since they are well known
by the shareholders; (2) declarations of votes, objections or dissents
presented will be received, numbered and certified by the presiding
Secretary and will be filed with the Company at its headquarters, pursuant
to paragraph 1 of article 130 of the Brazilian Corporation Law; (3) a
summarized version of these minutes, as well as its publication omitting
the signatures of the shareholders present, was authorized pursuant to the
terms of paragraphs 1 and 2 of article 130 of the Brazilian Corporation
Law.
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VII.
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RESOLUTIONS
:
The 48-hour adjournment of the meeting having run its course, the purpose
of which was to allow for an analysis of the considerations presented by
the Brazilian Securities and Exchange Commission (
Comissão de Valores
Mobiliários
– “
CVM
”) relating
to conditions of the stock swap merger, in light of CVM Practice Bulletin
(
Parecer de Orientação
CVM
) no. 35/08, the tasks before the meeting were reopened and,
after examining and discussing the items on the meeting’s agenda and the
related documents, the shareholders present, by a majority vote and some
abstentions (including that of shareholder BNDES Participações S.A –
BNDESPAR), resolved as follows:
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(i)
Approve
the Stock
Swap Merger Protocol in order to proceed with the merger of the Aracruz shares
into the Company’s asset base, pursuant to the terms of articles 224, 225, 252
and 264 of the Brazilian Corporation Law, and convert Aracruz into a
wholly-owned subsidiary of the Company;
provided
,
however
, that this
was approved (irrespective of any amendment to that protocol) pursuant to the
new conditions proposed by managements of the Company and Aracruz in accordance
with the Joint Proposal dated August 24, 2009, as noted in item (iv)
below.
At their
meeting held on July 21, 2009, the Company’s Fiscal Council opined favorably on
the approval of the Stock Swap Merger pursuant to the terms and conditions
outlined in the Stock Swap Merger Protocol.
(ii)
Ratify
the
choice and engagement terms previously executed by the Company’s management of
the following specialized firms that conducted valuations of the Company and
Aracruz pursuant to the Brazilian Corporation Law, at December 31,
2008:
(a) Baker
Tilly, with headquarters in the City of Vitória, State of Espírito Santo, at Av.
Nossa Senhora da Penha no. 520, Praia do Canto, enrolled with the Regional
Accounting Council of the State of Espírito Santo under CRC no. 2ES000289/O-5,
and with the Brazilian National Corporate Taxpayers Registry of the Ministry of
Finance under no. 27.243.377/0001-28, a specialized company responsible for
valuing the Aracruz shares, for the purposes outlined in articles 226 and 252,
paragraph 1, of the Brazilian Corporation Law; and,
(b) KPMG
Corporate Finance Ltda., a Brazilian partnership (
sociedade
), with headquarters
in the City of São Paulo, State of São Paulo, at Av. 9 de Julho no. 5,109 – 6th
floor, enrolled with the Regional Accounting Council of the State of São Paulo
under no. RE/3106 and enrolled with the Regional Business and Administration
Council of the State of São Paulo under no. 1037, responsible for valuing the
shareholders’ equity of VCP and Aracruz at market prices, for purposes of
article 264 of the Brazilian Corporation Law.
(iii)
Approve
the
valuation report prepared by Baker Tilly, which, in accordance with a book value
criteria, determined that the value of the Aracruz shares to be merged into
VCP’s asset base is R$529,842,603.00. Shareholders were informed
that, under the terms of the respective reports, (i) the market value of VCP’s
shareholders’ equity was R$5,941,286,655.00, or a price per share of R$29.506,
and (ii) the market value of Aracruz’s shareholders’ equity was
R$3,348,659,176.00, or a price per share of R$3.243.
(iv)
Approve
, under
the terms proposed by managements of the Company and Aracruz, as disclosed in
the Material Event Notice dated August 24, 2009 (the “
Joint Proposal
”), a
single Stock Swap Merger exchange ratio of 0.1347 VCP common share for each and
every one of the Aracruz shares, whether an Aracruz common, Class A or Class B
Preferred Share.
For
purposes of determining the Stock Swap Merger exchange ratio for non-controlling
shareholders of Aracruz, the Aracruz shares and the VCP shares were valued at
market prices, as calculated based on their average trading prices on São Paulo
Stock, Commodities and Future Exchange (
Bolsa de Valores, Mercadoria e
Futuros
) from December 2 (inclusive) through January 16,
2009.
The Stock
Swap Merger exchange ratio approved here complies with the recommendations of
the Special Independent Committees formed by the Company and Aracruz in
accordance with CVM Practice Bulletin no. 35, of September 1, 2008.
In
accordance with the valuation criteria set forth in article 264 of the Brazilian
Corporation Law, the Stock Swap Merger exchange ratio would be equal to 0.1099
VCP common share for each and every Aracruz common or preferred
share.
It is
noted that on August 17, 2009 the CVM’s Superintendence of Company Relations
(“
SEP
”) issued
some considerations with respect to the Stock Swap Merger exchange ratios that
had been contemplated of (i) 0.1226 VCP common share for each and every Aracruz
Class A Preferred or Class B Preferred Share and (ii) 0.1347 VCP common share
for each and every Aracruz common share; finding that the adoption of different
Stock Swap Merger exchange ratios for different Aracruz share classes would be
beneficial to VCP shareholders, per the terms of CVM Practice Bulletin no.
34. After analyzing these considerations, which were reiterated in a
letter of understanding disclosed on the CVM’s website on August 24, 2009,
managements of VCP and Aracruz, although firm in their belief that they had
complied with the legal and regulatory requirements necessary to establish the
exchange ratios mentioned above, decided to (a) follow the CVM’s
recommendation in order to avoid further delays to the Stock Swap Merger and
losses deriving therefrom to the two companies and their many shareholders and,
therefore, (b) formulate the Joint Proposal and apply a single Stock Swap Merger
ratio, so that 0.1347 VCP common share be exchanged for each and every Aracruz
share, irrespective of the share class. By proceeding on these terms
and as acknowledged by the CVM, any alleged benefit of the type referred by the
SEP shall be inapplicable and, accordingly, any application by analogy of
article 136, paragraph 1, of the Brazilian Corporation Law shall not
prevail.
Depositary Share Program
.
Given that: (i) the Stock Swap Merger ratio for the exchange of Aracruz Class B
Preferred Share for VCP common shares is 0.1347 VCP common share for each and
every Aracruz Class B Preferred Share, and (ii) one Aracruz American
Depositary Shares (“
ADS
”) corresponds to
ten Aracruz Class B Preferred Shares; the Stock Swap Merger ratio for the
exchange of Aracruz ADSs for VCP ADSs shall be 1.347 VCP ADS for each and every
Aracruz ADS.
Fractional shares
. So that
Aracruz shareholders do not end up with fractional VCP common shares as a result
of the Stock Swap Merger, Aracruz shareholders shall receive from Votorantim
Industrial S.A., VCP’s controlling shareholder, a donation of a whole VCP common
share in exchange for any fractional entitlements resulting from the Stock Swap
Merger.
(v)
Approve
, per the
terms of the Stock Swap Merger Protocol, the merger into the Company’s asset
base of 577,359,271 Aracruz shares held by non-controlling shareholders of
Aracruz, in exchange for newly-issued VCP shares, causing Aracruz to become a
wholly-owned subsidiary of the Company, pursuant to article 252 of the Brazilian
Corporation Law.
Appraisal rights
. The
Company's shareholders are not entitled to appraisal rights, as the Company’s
common shares meet the liquidity and dispersion criteria set forth in letter “a”
and “b” of paragraph II of Section 137 of the Brazilian Corporation
Law.
(vi)
Approve
,
pursuant to item 2.11 of the Stock Swap Merger Protocol and the amendments set
forth in the Joint Proposal, the Company’s capital increase of
R$529,842,603.00. Given the exchange ratio adopted here, 77,770,294
new VCP nominative, book-entry common shares, with no par value, will be issued,
instead of the 70,804,564 common shares envisioned in the Stock Swap Merger
Protocol, with the R$17.00 unit issue price being maintained. The
amount of R$792,252,395.00 will be allocated to the goodwill reserve (share
subscription) line item. As a result, the Company’s
shareholders’ equity will increase by R$1,322,094,998.00.
In
accordance with paragraph 1 of article 252 of the Brazilian Corporation Law,
shareholders of the Company will not have preemptive rights to subscribe
newly-issued VCP shares in the capital increase.
André
Luiz Gonçalves, representing Aracruz at the Meeting, subscribed, in accordance
with paragraph 2 of article 252 of the Brazilian Corporation Law, 77,770,294
newly-issued VCP common shares for the account of Aracruz shareholders, as
resolved in the Aracruz Extraordinary General Shareholders’ Meeting resumed
today at 11:00 a.m., and paid in full for them with the Aracruz shares to be
merged into the Company’s asset base. The newly-issued VCP common
shares will be credited to the non-controlling shareholders of any Aracruz share
class, in proportion to their respective interests in Aracruz and in accordance
with the approved Stock Swap Merger exchange ratio.
The
newly-issued VCP shares will participate in VCP’s financial results for the
current fiscal year.
In light
of the capital increase approved here, the capital stock of the Company will be
R$7,587,144,784.59, divided into 467,934,646 nominative, book-entry common
shares, with no par value.
(vii)
Authorize
the
Company’s management to undertake all actions, registrations and publications
necessary to implement the Stock Swap Merger approved here.
(viii)
Elect
three
member to the Company’s Board of Directors for a term of two years until the
2011 Annual General Shareholders’ Meeting, as follows:
Raul Calfat
, Brazilian,
married, business administrator, bearer of ID card no. 5.216.686-7 – SSP/SP, and
registered with CPF/MF under no. 635.261.408-63, resident and domiciled in the
city of São Paulo, State of São Paulo;
Alexandre Silva D’Ambrosio
,
Brazilian, married, lawyer, bearer of ID card no. 7.124.595-9 SSP-SP and
registered with CPF/MF under no. 042.170.338-50, resident and domiciled in the
city of São Paulo, State of São Paulo; and
Wang Wei Chang
, naturalized
Brazilian, married, electrical engineer, bearer of ID card no. 3.730.889-0 and
registered with CPF/MF under no. 534.698.608-15, resident and domiciled in the
city of São Paulo, state of São Paulo, all with the business address in the city
of São Paulo, State of São Paulo, at Rua Amauri, 255, 13th floor, CEP
1448-000.
The Board
Members elected here declare for purposes of paragraph 1 of article 147 of the
Brazilian Corporation Law and article 1,011 of Law no. 10.406/02, that they are
not involved in crimes that would prevent them from commercial practice, having
been presented at this Meeting the declarations outlined in article 147, § 4ºof
the Brazilian Corporation Law and CVM Instruction 367/02.
(ix)
Amend
, in light
of item (vi) above, the lead paragraph of Article 5 of the Company’s Bylaws,
such that it shall read as follows:
“Article
5 – The Capital Stock is R$7,587,144,784.59, divided into 467,934,646
nominative, book-entry common shares, with no par
value.”
It is
noted that shareholder Sérgio Feijão was in favor of approving the items on the
meeting’s agenda.
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VIII.
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DOCUMENTS
:
The documents
pertaining to the meeting’s agenda are filed at the Company’s headquarters
and are at the disposal of
shareholders.
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IX.
|
CLOSING
:
As there were no further matters to be discussed, the meeting was
adjourned for the time necessary to draft these minutes, which were read,
verified and found to conform to the matters discussed and resolutions
approved at this meeting, having been signed by everyone in
attendance.
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Maria Lucia
Cantidiano
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Rodrigo Piva
Menegat
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President
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Secretary
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Paulo
Prignolato
Chief Financial Officer and
Director of Investor Relations
André
Luiz Gonçalves
Representative of Aracruz
Celulose S.A.
Samuel de
Paula Matos and João Carlos Hopp
Members of the Fiscal
Council
Rogério
Villa
Representative of Terco
Grant Thornton
Osvaldo
Roberto Nieto
Representative of Baker
Tilly Brasil – ES Auditores Independentes Ltda.
Luis
Augusto Motta Pinto da Luz
Representative of KPMG
Corporate Finance Ltda.
Shareholders
Votorantim
Industrial S.A. by Eduardo Lavini Russo
BNDES
Participações S.A – BNDESPAR – by Rodrigo Rabelo Tavares Borba
Caixa de
Previdência dos Funcionários do Banco do Brasil – PREVI, by Marcio de Oliveira
Gottardo
Investment
Funds and Investors listed in Document II represented by Santander Asset
Management, by Derek Lundgren Bittar
Sergio
Feijão Filho
Investment
Funds and Investors listed in Document I represented by HSBC Corretora de
Títulos e Valores Mobiliários S/A, by Anderson Carlos Koch
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