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PRIVATE INSTRUMENT OF PROTOCOL AND JUSTIFICATION OF MERGER OF BOSAN PARTICIPAÇÕES S.A. BY BANCO SANTANDER (BRASIL) S.A.
By this private instrument, the managers of the companies qualified below:
1. BANCO SANTANDER (BRASIL) S.A., a publicly held corporation with authorized capital, headquartered in the city of São Paulo, State of São Paulo, at Avenida Presidente Juscelino Kubitschek, No. 2041 and 2235 Bl. A, Vila Olímpia, enrolled with the CNPJ/ME under No. 90.400.888/0001-42, herein represented according to its Bylaws (”Merging Company” or “Banco Santander”); and
2. BOSAN PARTICIPAÇÕES S.A., a privately held corporation, headquartered in the city of Belo Horizonte, State of Minas Gerais, at Rua Alvarenga Peixoto, No. 974, 8th floor, part, District of Santo Agostinho, enrolled with the CNPJ/ME under No. 32.091.564/0001-73, herein represented according to its Bylaws (”Merged Company” or “Bosan”).
(Banco Santander and Bosan are hereinafter referred to jointly as “Parties” and individually as “Party”).
WHEREAS:
I. Bosan was originally incorporated by the former shareholders of Banco Olé Consignado S.A., a privately held corporation, headquartered in the city of Belo Horizonte, State of Minas Gerais, at Rua Alvarenga Peixoto, No. 974, 8th floor, part, District of Santo Agostinho, enrolled with the CNPJ/ME under No. 71.371.686/0001-75 (”Banco Olé”), in the context of the joint venture created between such shareholders and Banco Santander, in order to concentrate the equity interest held by the former shareholders of Banco Olé in a single investment vehicle;
II. On January 30, 2020, Banco Santander acquired 100% (one hundred percent) of the shares issued by Bosan held by its shareholders at such time, so that Bosan became, as of such date, a wholly owned subsidiary of Banco Santander;
III. The only asset of Bosan remains to be the investment that represents 40% (forty percent) of the common shares, registered, with no par value issued by Banco Olé, provided that the remainder of the shares issued by Banco Olé, representing 60% ( sixty percent) of its capital stock, are directly owned by Banco Santander;
IV. The Parties, for the reasons described below, intend to carry out the merger of Bosan by Banco Santander, under the terms of the current legislation (“Merger”); and
V. The Merger shall be carried out without the increase of the capital stock of Banco Santander, which means, without diluting its current shareholders, so that the obligations set forth in Chapter III of CVM Instruction No. 565/2015, as amended (“ICVM 565”), are not applicable.
NOW, THEREFORE, the Parties decide to enter into this instrument (“Protocol and Justification”), in accordance with Article 223 and following of Law No. 6,404/1976, as amended, with the purpose of the Merger, provided that this Protocol and Justification shall be submitted to the approval of the respective shareholders of the Parties, through an Extraordinary General Meeting, under the following terms and conditions:
1. CHARACTERISTICS OF THE COMPANIES INVOLVED
1.1. Banco Santander is a publicly held corporation with authorized capital, with capital stock in the amount of BRL 57,000,000,000.00 (fifty seven billion Brazilian reais), divided into 7,498,531,051 (seven billion, four hundred and ninety eight million, five hundred and thirty one thousand and fifty one) shares, of which 3,818,695,031 (three billion, eight hundred and eighteen million, six hundred and ninety five thousand and thirty one) are common shares and 3,679,836,020 (three billion, six hundred and seventy nine million, eight hundred and thirty six thousand and twenty) are preferred shares, registered and with no par value.
1.2. Bosan is a privately held corporation, with capital stock in the amount of BRL 617,175,011.00 (six hundred and seventeen million, one hundred and seventy five thousand and eleven Brazilian reais), divided into 396,773,760 (three hundred and ninety six million, seven hundred and seventy three thousand, seven hundred and sixty) shares, of which 303,055,798 (three hundred and three million, fifty five thousand, seven hundred and ninety eight) are common shares and 93,717,962 (ninety three million, seven hundred and seventeen thousand, nine hundred and sixty two) are preferred shares, registered and with no par value, all held by Banco Santander.
2. PURPOSE AND JUSTIFICATION OF THE MERGER
2.1. The purpose of this Protocol and Justification is the proposal for the merger of Bosan by Banco Santander, under the terms of the current legislation.
2.2. The only reason for the existence of Bosan was to be the investment vehicle of Banco Olé's former shareholders. Once its control is now 100% consolidated by Banco Santander, there is no reason to maintain Bosan's activities. In this sense, the Merger is the most suitable operation to achieve the purposes intended by the Parties, namely, the unification of their activities and management, which shall result in administrative, economic and financial benefits to the Parties' operations and business, including: (i) rationalization and simplification of its corporate structure and, consequently, consolidation and reduction of combined operational expenses and outgoings; (ii) better management of the Parties' operations, assets and cash flows, due to the union of business resources and assets involved in the operation of the Parties.
2.3. After the Merger, Banco Santander shall continue to perform the activities currently performed by Bosan, which is the participation in the capital stock of other companies.
3. CONDITIONS OF THE MERGER; NO INCREASE IN THE NET WORTH AND OF RIGHT TO WITHDRAWAL
3.1. Date for the Merger. The Merger shall be resolved by the Parties at Extraordinary General Meetings to be called in due time and to be held on August 31, 2020.
3.2. Appraisal of the Net Worth of Bosan. For the purposes of the Merger, the net worth of Bosan was appraised at its book value, according to the balance sheet drawn up on June 30, 2020 (“Base Date”), determined in an appraisal report dated as of July 28, 2020 (“Appraisal Report”), prepared in accordance with the fundamental accounting principles, on a consistent basis, containing all the necessary and sufficient accounting elements for the Merger, allowing the identification of the rights and obligations to be transferred to the equity of Banco Santander, and which constitute Exhibits I and II of this Protocol and Justification.
3.3. Hiring of a Specialized Company. The managements of the Parties hired PricewaterhouseCoopers Auditores Independentes, headquartered in the city of São Paulo, State of São Paulo, at Avenida Francisco Matarazzo, 1400, 9th, 10th floors and from 13th floor to 17th floor, Torre Torino, Água Branca, enrolled with the CNPJ/ME under No. 61.562.112/0001-20 ("Specialized Company"), which declared that (i) there is no conflict or shared interest, current or potential, with the shareholders of the Parties or with the Merger; and (ii) the shareholders or managers of the Parties have not directed, limited, hindered or practiced any acts that have or may have compromised the access, use or knowledge of information, goods, documents or work methodologies relevant to the quality of the respective conclusions.
3.3.1. The hiring of the Specialized Company shall be subject to ratification by the shareholders of Banco Santander, at the respective Extraordinary General Meeting that decide on this Protocol and Justification, pursuant to article 227 of Law No. 6,404/76.
3.4. Net Assets Value of Bosan. As determined in the Appraisal Report, the net assets of Bosan to be merged by Banco Santander, based on the value of its net worth on the Base Date, correspond to BRL 700,624,940.21 (seven hundred million, six hundred and twenty four thousand and nine hundred and forty Reais and twenty one centavos).
3.5. No Increase in Banco Santander Capital and Net Worth. The Merger shall not result in an increase in the net worth of Banco Santander, once 100% (one hundred percent) of the shares issued by the Merged Company are directly owned by Banco Santander, and Banco Santander already has the records of the Merged Company in its consolidated financial statements. In addition, in replacement of the shares that are currently recorded in the consolidated financial statements of Banco Santander, the assets of the Merged Company, after the Merger, shall be directly recorded as assets of Banco Santander. Thus, as a consequence of the intended Merger, it shall be operated in the accounting of Banco Santander the replacement of the assets of the Merged Company represented by its investment account referring to the equity interest in the Merged Company's capital stock by the assets and liabilities included in the balance sheet of the Merged Company, without any change in the capital account.
3.5.1. The totality of the shares representing the capital stock of the Merged Company, which are owned by Banco Santander, shall be extinguished, pursuant to Article 226, paragraph 1st, of Law 6,404/76, therefore it is not possible to consider any exchange relation.
3.5.2. As a result of the provision set forth in item 3.5 above, the capital stock of Banco Santander shall not be changed, with no new shares being issued.
3.5.3. The corporate purpose of Banco Santander shall also not be changed, once the activities performed by the Merged Company are already carried out by Banco Santander and are included in its corporate purpose.
3.5.4. In view of the above, there will be no need for any amendment to the bylaws of Banco Santander as a result of the Merger.
3.6. Equity Variations. Equity variations appraised in the Merged Company between the Base Date and the date on which the Merger is carried out shall be appropriated by Banco Santander, in compliance with the provisions of article 5th of Circular No. 3,017, of December 6, 2000, of the Brazilian Central Bank.
3.7. Goodwill. The goodwill recorded by Banco Santander as a result of the acquisition of the shares issued by the Merged Company will, after the Merger, be used for tax purposes by Banco Santander, in accordance with the terms, limits and conditions established in the applicable law. The tax effect to be generated by the amortization of the goodwill, as a result of the Merger, will benefit all shareholders of Banco Santander, without the issuance of new shares.
3.8. No Right to Withdrawal. Considering that Banco Santander is the sole shareholder of the Merged Company, the provisions relating to the right to withdrawal are not applicable to the Merger, pursuant to Article 137 of Law 6,404/76.
3.9. No Relationship of Share Replacement and Appraisal of Net Worth at Market Prices. Pursuant to CVM Deliberation No. 559/08, item I, subitem “b”, of CVM/SEP Circular Letter No. 2/2020 and CVM Process No. 19957.011351/20171-21, the appraisal referred to in article 264 of Law 6,404/76 shall be waived, as it would only result in costs for Banco Santander, without any practical application, considering (i) that, other than Banco Santander itself, there are no shareholders in the capital stock of the Merged Company; therefore the exercise of the right to withdrawal is impaired, as per item 3.8 above; and (ii) the non-occurrence of a capital increase of Banco Santander, and the absence of share replacement (exchange relation), according to items 3.5.1 and 3.5.2 above.
4. CORPORATE AND REGULATORY APPROVALS
4.1. The completion of the Merger shall depend on the performance of the following acts:
(i) Extraordinary General Meeting of Bosan to, in this order, (a) approve this Protocol and Justification; (b) approve the Merger; and (c) authorize the practice, by the managers of Bosan, of all necessary and/or convenient acts for the implementation of the Merger; and
(ii) Extraordinary General Meeting of Banco Santander to, in this order, (a) ratify the hiring of the Specialized Company; (b) approve the Appraisal Report; (c) approve this Protocol and Justification; (d) approve the Merger, with the consequent extinction of the Merged Company; (e) approve the Private Instrument of Protocol and Justification of Merger of Banco Olé; (f) approve the merger of Banco Olé, with the consequent extinction of Banco Olé; and (g) authorize the practice, by the managers of Banco Santander, of all necessary and/or convenient acts for the implementation of the Merger.
4.2. Without prejudice to the acts indicated in item 4.1 above, the completion of the Merger shall be subject to homologation by the Brazilian Central Bank, pursuant to Resolution No. 4,122, of August 2, 2012.
5. MISCELLANEOUS
5.1. Irrevocability and Succession. This Protocol and Justification is entered into on an irrevocable and irreversible basis, binding the Parties and their successors of any title.
5.2. Extinction of the Merged Company. The completion of the Merger shall lead to the extinction of the Merged Company, which shall be succeeded by Banco Santander in all its goods, rights, assets, obligations and responsibilities, under the terms of the applicable provisions of Law 6,404/76.
5.3. All real estate properties that make up the assets of the Merged Company, which description and identification are included in the Appraisal Report, as well as the furniture, inventories and equipment, existing in the establishments of the Merged Company or registered in its name, shall become property of Banco Santander as a result of the Merger.
5.3.1. As a result of the Merger, Banco Santander shall hold the equity interest held by Bosan in Banco Olé.
5.4. The managers of Banco Santander shall be responsible for performing all acts necessary for the implementation of the Merger, including promoting the filing and publication of all acts related to the Merger, pursuant to article 227, paragraph 3rd, of Law 6,404/76, and also to write off, register and amend the enrollments of the Merged Company with the competent federal, state and municipal offices, as well as the maintenance of its accounting books for the legal term.
5.5. This Protocol and Justification may only be changed by means of a written instrument signed by the Parties.
5.6. All documents mentioned in this Protocol and Justification, from this date, shall be available to the shareholders of Banco Santander at its headquarters, its Investor Relations website (santander.com.br/ri), as well as on the websites of the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários) and B3 SA - Brasil, Bolsa, Balcão.
5.7. The Parties hereby elect the court of the District of São Paulo, State of São Paulo, to resolve all issues arising from this Protocol and Justification, waiving any other, even if it is or may be more privileged.
And so, the Parties have deemed and agreed to execute this “PRIVATE INSTRUMENT OF PROTOCOL AND JUSTIFICATION OF MERGER OF BOSAN PARTICIPAÇÕES S.A. BY BANCO SANTANDER (BRASIL) S.A..” in 3 (three) counterparts of equal content and form, for a single effect, in the presence of the 2 (two) undersigned witnesses.
São Paulo, July 29th, 2020.
BANCO SANTANDER (BRASIL) S.A.
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________________________________ By: Title: |
________________________________ By: Title: |
BOSAN PARTICIPAÇÕES S.A.
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________________________________ By: Title: |
________________________________ By: Title: |
Witnesses:
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________________________________ Name: ID: CPF: |
________________________________ Name: ID: CPF: |
EXHIBIT I
PRIVATE INSTRUMENT OF PROTOCOL AND JUSTIFICATION OF MERGER OF BOSAN PARTICIPAÇÕES S.A. BY BANCO SANTANDER (BRASIL) S.A.
Entered into on July 29th, 2020.
Balance Sheet of Bosan Participações S.A.
Base Date: June 30, 2020.
| Assets | |
| Financial availabilities | - |
| Fixed income financial investments | 1,980,306 |
| Taxes to offset | 58,595 |
| Total of Current Assets | 2,038,901 |
| Investments | 700,437,498 |
| Total of Non-Current Assets | 700,437,498 |
| Total Assets | 702,476,399 |
| Liabilities | |
| Tax and Social Security | 1,851,459 |
| Total Liabilities | 1,851,459 |
| Share capital | 617,175,011 |
| Legal Reserve | 4,767,496 |
| Statutory Reserve | 78,682,434 |
| Net Equity | 700,624,940 |
| Total Liabilities | 702,476,399 |
EXHIBIT II
PRIVATE INSTRUMENT OF PROTOCOL AND JUSTIFICATION OF MERGER OF BOSAN PARTICIPAÇÕES S.A. BY BANCO SANTANDER (BRASIL) S.A.
Entered into on July 29th, 2020.
Appraisal Report of Bosan Participações S.A.
Base Date: June 30, 2020.
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Banco Santander (Brasil) S.A. | ||
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By: |
/S/ Amancio Acurcio Gouveia
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Amancio Acurcio Gouveia Officer Without Specific Designation |
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By: |
/S/ Angel Santodomingo Martell
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Angel Santodomingo Martell Vice - President Executive Officer |
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