This is a free translation of the original document in Portuguese. In the case of any conflict, the Portuguese version will prevail.
LUPATECH S.A.
Corporate Taxpayer’s ID (CNPJ/MF) 89.463.822/0001-12
Corporate Registry ID (NIRE) 43.3.0002853-4
Public Held Company – Novo Mercado
MINUTES OF THE DEBENTURE HOLDERS GENERAL MEETING
HELD ON DECEMBER 30, 2010
1.
DATE, TIME AND PLACE: Meeting held on December 30, 2010, at 02:00 p.m., at
the Company’s headquarter, located at Rua Dalton Lahn dos Reis, n° 201, in the city of
Caxias do Sul, state of Rio Grande do Sul.
2.
CALL AND ATTENDANCE: The Call Notice was published on the newspapers
Valor Econômico and Diário Oficial do Estado do Rio Grande do Sul, on December 15,
16 and 17 of 2010, respectively. Due to the attendance of Debenture Holders
representing 90.08% (ninety point zero eight percent) of the outstanding Debentures of
the 2nd Issue of Debentures Convertible into Shares, in Single Series, with Floating
Charge, for Private Placement of the Company (“Issue”), as verified from the signature
of the Debenture Holders Attendance List and, also, with the attendance of Planner
Trustee DTVM Ltda., as the Trustee of the referred Issue, represented by Tatiana de
Oliveira Lima and Renato Martinelli Campana, the Debenture Holders General
Meeting was opened.
3.
DESK COMPONENTS: Chairman: Jean Matana Moreira; Secretary: Gilberto
Pasquale da Silva.
4.
AGENDA OF THE DAY: According to the Company’s Management Proposal,
approved at the Board of Directors Meeting held on December14, 2010, to discuss
about:
(i) the amendment of Section VIII , item 8.1, letter (t) of the Indenture, which refers to
the obligations that the Company is subject to until the full settlement of the
Debentures object of the Issue, to: (a) amend the verification period of the financial
indexes which refers letter (t) of the referred item 8.1; (b) amend the index Net
Debt/EBITDA, as defined by the “Private Instrument of the 2nd Issue of Debentures
Convertible into Shares, with Floating Charge for Private Placement of the
Company (“Indenture”)” and (c) to record that the financial indexes referred in the
letter (t) will not be required until June 30, 2011, excluded, regarding the 2010
fiscal year;
(ii) remuneration to be paid to the Debenture Holders of the Issue by means of the
amendments of item (i) above;
(iii) the authorization for the execution of the Second Amendment to the Indenture by
the Company, to be entered into with the Trustee, so the amendments above
mentioned can become an integrated part of the Indenture; and finally,
(iv) the authorization for the Board of Executive Officers of the Company to take all the
measures and absorb the costs necessary to carry out the additions and amendments
to the Indenture.
Lupatech S.A.
R. Dalton Lahm dos Reis, 201 - Distrito Industrial
Caxias do Sul - RS - CEP 95112-090
Fone 55 54 2992.7000 - Fax 55 54 2992.7601
www.lupatech.com.br
5.
RESOLUTIONS: Beginning the work, the Trustee representative verified that the
quorum required for the meeting to be held and to conclude the resolutions, were both
legally and properly reached. That said, the present Debenture Holders, without a
dissentient vote, resolved as follow:
What refers to matters (i) and (ii) included in the agenda above:
(i)
to amend the Section VIII, item 8.1, letter (t) of the Indenture, to: (a) amend the
verification period of the financial indexes which refers letter (t) of the referred
item 8.1 from annual to semi-annual, (b) amend the index Net Debt/EBITDA
from equal to or lower than 3.5 (three and a half) to equal to or lower than 7.0
(seven); and (c) to record evidence that the financial indexes mentioned in the
letter (t) will not be required until June 30, 2011, excluded, regarding the 2010
fiscal year; and,
(ii)
remunerate the Debenture Holders of the Issue, until January 31, 2011, by
means of the amendments under item (i) a fee equivalent to 0.5% (zero point
five percent) of the Debentures face value.
With the reported amendments of these items (i) and (ii), the item 8.1 (t) of the Indenture, shall
contain the following new and consolidated wording:
“8.1 (…)
(t) maintain, during the Debenture existence, until its maturity, at least two of the
following indexes calculated semi-annually in financial statements audited by external auditors
registered in CVM:
(i)
(iii)
(iv)
Net Debt/EBITDA: equal to or lower than 7.0 (seven);
EBITDA/ROL: equal to or higher than 20% (twenty per cent); and
Current Ratio: equal to or higher than 1.5 (one and a half).
Where:
-Net Debt: (Gross Debt – Perpetual Bonds – Cash and Cash Equivalents), where
(Gross Debt = Loans + Financing + Debentures + any other form of debt to financial
institutions, including installments with creditors) and (Cash and Cash Equivalents = Cash +
Financial Investments);
-EBITDA: Operating Income before Profit Sharing, Income Tax and Social
Contribution, Net Financial Income, Depreciation, Amortization, Amortization of Goodwill,
Equity Income (except for the Equity Income from Luxxon S.A) and impairment losses, on a
consolidated basis for the last 06 (six) months, including companies acquired during this period
on a pro forma basis;
- ROL: Net Operating Revenues considered in a consolidated basis for the last 06 (six)
months, including companies acquired during this period on a pro forma basis;
- Current Ratio: Current Assets divided by Current Liabilities;
Until June 30, 2011, excluded, the financial indexes referred in letter (t) of item 8.1 will
Lupatech S.A.
R. Dalton Lahm dos Reis, 201 - Distrito Industrial
Caxias do Sul - RS - CEP 95112-090
Fone 55 54 2992.7000 - Fax 55 54 2992.7601
www.lupatech.com.br
not be required for fulfilling the special obligation of the Issuer, which the non
compliance would determine the accelerated maturity of the Debentures under item 7.1,
letter (p), regarding the 2010 fiscal year, since the Issuer pays to the Debenture Holders
0.5% (zero point five percent) of the Debentures face value until January 31, 2011.
The financial indexes referred in the present letter (t) of item 8.1 will be calculated on a
semi-annual basis, on June 30 and December 31 of each year, corresponding the
verification to the 06 (six) previous months to each of the mentioned verification dates."
6.
(iii)
the authorization for the execution of the Second Amendment to the Indenture
by the Company, to be entered into with the Trustee, so that the amendments
approved in this Debenture Holders Meeting become an integrated part of the
Indenture, under the terms of the Exhibit A of this Meeting; and finally,
(iv)
the authorization for the Board of Executive Officers of the Company to take all
the measures and absorb the costs necessary to carry out the amendments and
additions to the Indenture resolved in this Debenture Holders Meeting.
CLOSING: Nothing else to be discussed, the meeting was closed, and these
present minutes were drawn up, read and as in compliance, was signed by all.
Caxias do Sul (RS), December 30, 2010. Jean Matana Moreira, Chairman; Gilberto
Pasquale da Silva, Secretary.
Caxias do Sul (RS), December, 30 of 2010.
Jean Matana Moreira
Chairman
Gilberto Pasquale da Silva
Secretary
Debenture Holders Attendance List :
__________________________________________________
BNDES Participações S. A.
(p.p. Dra. Letícia Lourenço Costa)
__________________________________________________
TRW Automotive Defined Benefit Master Trust; American Legacy Foundation;
Railways Pension Trustee Company Limited; Florida Retirement System Trust Fund;
Laudus International Marketmasters Fund; Blackrock Strategic Fund - Blackrock Latin
A Opportunies Fund; State of Connecticut Retirement Plans and Trust Funds; Blackrock
Latin America Fund, Inc; Commonwealth of Pennsylvania P S Employees' Retirement
System (p.p. Dr. Leonardo Zucolotto).
__________________________________________________
Trustee Agent
Planner Trustee DTVM Ltda.
(p.p. Tatiana de Oliveira Lima e Renato Martinelli Campana)
Lupatech S.A.
R. Dalton Lahm dos Reis, 201 - Distrito Industrial
Caxias do Sul - RS - CEP 95112-090
Fone 55 54 2992.7000 - Fax 55 54 2992.7601
www.lupatech.com.br
EXHIBIT A
SECOND AMENDMENT TO THE PRIVATE INSTRUMENT OF INDENTURE OF THE 2ND
ISSUE OF DEBENTURES CONVERTIBLE INTO SHARES, WITH FLOATING CHARGE FOR
PRIVATE PLACEMENT OF LUPATECH S.A.
This Instrument is entered into by and between:
(i) LUPATECH S.A., a business corporation headquartered and with jurisdiction in the city of
Caxias do Sul, state of Rio Grande do Sul, at Rua Dalton Lahn dos Reis, n° 201, CEP
95.012-020, enrolled with the National Register of Corporate Taxpayers (CNPJ/MF) under
No. 89.463.822/0001-12, with its articles of incorporation and bylaws filed with the
Registry of Commerce of the State of Rio Grande do Sul (“JUCERGS”) under Corporate
Registry ID No. 43300028534, hereby represented pursuant to its Articles of
Incorporation and Bylaws (hereinafter referred to as simply the “Issuer” or the
“Company”);
And,
(ii)
representing the pooling of interests of the debenture holders, purchasers of the
debentures that are the object of this issue (jointly referred to as the “Debenture
Holders”), PLANNER TRUSTEE DTVM LTDA, a financial institution authorized to
operate by the Brazilian Central Bank, headquartered at Av. Brigadeiro Faria Lima nº
3900 – 10th floor, in the city of São Paulo, state of São Paulo, enrolled with the National
Register of Corporate Taxpayers (CNPJ/MF) under No. 67.030.395/0001-46, hereby
represented pursuant to its Articles of Incorporation and Bylaws (hereinafter referred to
simply as the “Trustee”),
and the Issuer, the Debenture Holders and the Trustee are hereinafter referred to as the
“Parties”,
WHEREAS:
(i)
on May, 26 of 2009, the Parties executed the Private Instrument of the 2th Issue of
Debentures Convertible into Shares, with Floating Charge for Private Placement of
Lupatech S.A.. (“Indenture” and “Issuance”, respectively);
(ii)
at the Board of Directors Meeting and the General Meeting of Debenture Holders of the
Company held on December, 14 and 30 of 2009, respectively, the members of the
Board of Directors of the Company and the Debenture Holders authorized and approved
the execution of the First Amendment to the Indenture (“First Amendment”), which was
agreed on December 30, 2009;
(iii)
at the Board of Directors Meeting and the General Meeting of Debenture Holders of the
Company held on December, 14 and 30 of 2010, respectively, the members of the
Board of Directors of the Company and the Debenture Holders authorized and approved
the execution of a new amendment to the Indenture;
(iv)
the Parties would like to amend again the Indenture, in order to include on it the
amendments approved at the Board of Directors Meeting and the General Meeting of
Debenture Holders, mentioned on item (iii) above.
Lupatech S.A.
R. Dalton Lahm dos Reis, 201 - Distrito Industrial
Caxias do Sul - RS - CEP 95112-090
Fone 55 54 2992.7000 - Fax 55 54 2992.7601
www.lupatech.com.br
The Parties hereto resolve to execute this Second Amendment to the Private Instrument of the
2nd Issue of Debentures Convertible into Shares, with Floating Charge for Private Placement of
Lupatech S.A. (“Second Amendment”), pursuant to the following terms and conditions.
1.
THE AMENDMENTS
1.1
The Section VIII, item 8.1, letter (t) of the Indenture is here amended and will
be written as follows:
“8.1 (…) maintain during the existence of the Debentures until its maturity, at least two
determined indexes listed semi-annually on financial statements audited by external auditors
registered in CVM:
(i) Net Debt/EBITDA: equal to or lower than 7.0 (seven);
(ii) EBITDA/ROL: equal to or higher than 20% (twenty percent); and
(iii) Current Ratio: equal to or higher than 1.5 (one and a half).
Where:
- Net Debt: (Gross Debt – Perpetual Bonds – Cash and Cash Equivalents), where (Gross
Debt = Loans + Financing + Debentures + any other forms of debt to financial institutions,
including installments with creditors) and (Cash and Cash Equivalents = Cash + Financial
Investments);
- EBITDA: Operating Income before Profit Sharing, Income Tax and Social Contribution, Net
Financial Income, Depreciation, Amortization of Goodwill, Equity Income (except for the
Equity Income from Luxxon S.A) and impairment losses, on a consolidated basis for the last
06 (six) months, including the companies acquired in this period on a pro forma basis;
- ROL: Net Operating Revenues considered in a consolidated basis for the last 06 (six)
months, including companies acquired during this period on a pro forma basis;
- Current Ratio: Current Assets divided by Current Liabilities;
Until June 30, 2011, excluded, the financial indexes referred in letter (t) of item 8.1 will not be
required for fulfilling the special obligation of the Issuer, which the non compliance would
determine the accelerated maturity of the Debentures under item 7.1, letter (p), regarding the
2010 fiscal year, since the Issuer pays to the Debenture Holders 0.5% (zero point five percent)
of the Debentures face value until January 31, 2011.
The financial indexes referred in the present letter (t) of item 8.1 will be calculated on a semiannual basis, on June 30 and December 31 of each year, corresponding the verification period
to the 06 (six) previous months to each of the mentioned verification dates."
2.
FILING OF THE AMENDMENT
2.1
The Second Amendment will be filed with the JUCERGS, pursuant to the
provisions of item II of article 62, of the Brazilian Business Corporation Act and in the terms of
the Indenture.
Lupatech S.A.
R. Dalton Lahm dos Reis, 201 - Distrito Industrial
Caxias do Sul - RS - CEP 95112-090
Fone 55 54 2992.7000 - Fax 55 54 2992.7601
www.lupatech.com.br
3.
THE GENERAL PROVISIONS
3.1
The terms beginning with capital letters and not defined in this Second Amendment
shall have the meanings which were assigned to them at the Indenture or at other documents
of the Issue.
3.2
This Second Amendment is irrevocably and irreversibly entered into by the Parties, and
is a legal obligation, valid and binding for the Parties, forcing them and all of their successors,
heirs and/or assigns in any way, as of this date.
3.3
Remain confirmed, pursuant to the terms which are written, all other clauses, items,
features and conditions of Indenture that was not specifically amended by this Second
Amendment.
3.4
This Second Amendment shall be governed and understood in accordance with the laws
of the Federal Republic of Brazil.
In witness whereof, the Parties enter into this Second Amendment, to be executed in 7 (seven)
counterparts of equal form and content, in the presence of 2 (two) undersigned witnesses.
****
Caxias do Sul, December 30, 2010
LUPATECH S.A.
________________________________
By: Jean Matana Moreira
Position: Lawyer – by Power of attorney
_______________________________
By: Gilberto Pasquale da Silva
Position: Administrative Director
PLANNER TRUSTEE DTVM LTDA.
_____________________________
By: Artur Martins de Figueiredo
Position: Director
_____________________________
By: Flavio Aguetoni
Position: Attorney-in-fact
Witnesses
1._______________________________
Micael Viali da Silva
CPF: 009.187.720-28
2.__________________________
Renato Martinelli Campana
CPF: 042.566.684-03
Lupatech S.A.
R. Dalton Lahm dos Reis, 201 - Distrito Industrial
Caxias do Sul - RS - CEP 95112-090
Fone 55 54 2992.7000 - Fax 55 54 2992.7601
www.lupatech.com.br