Exhibit 3.03
MEMORANDUM OF UNDERSTANDING REGARDING
SHAREHOLDERS AGREEMENT OF COPENE
By this private instrument and in the best legal form, the contracting parties:
I - ODEBRECHT QUIMICA S.A., headquartered in the City of Sao Paulo, SP, at
Xxxxxxx Xxxxxx Xxxxxx, 0000, xxxxx xxxxx, xxxx 00, enrolled before CNPJ/MF under
number 57.015.018/000-84, hereinafter referred to as ODEQUI, herein represented
by Xxxxxxx Bahia Odebrecht, Brazilian, married, engineer, bearer of the
Identification Card under number RG-2.598.834-SSP/BA, CPF under number
000.000.000-00 and Xxxxxxx Xxxxxx Xxxx Rolim, Brazilian, married, lawyer, bearer
of the Identification Card under number RG-3.703.556-SSP/BA, CPF under number
000.000.000-00 and;
II - PETROQUIMICA DA BAHIA S.A., headquartered in the City of Salvador, Bahia,
at Xxx Xxxxxx Xxxxxx 00, second floor, part, enrolled before CNPJ/MF under
number 13.943.667/0001-70, hereinafter referred to as PQBA herein represented by
Xxxxxxxxx Xxxxxxxx de Sa, Brazilian, married, engineer, bearer of the
Identification Card under number RG-728.830-SSP/BA, CPF number 000.000.000-00
and Xxxxx Xxxxxxx Xxxxxxx, Brazilian, married, administrator, bearer of the
Identification Card under number RG-06.705.280-3 IFP, CPF number 874.746.317-20;
Companies jointly or severely named CONTROLLING COMPANIES, by itself or any
controlling, affiliate or under common control company, and;
III - PETROBRAS QUIMICA S.A. - PETROQUISA, a corporate headquartered at Xxxxxxx
Xxxxxxxxx xx Xxxxx, xxxxxx 00, Xxxxxx, Xxxx of Rio de Janeiro, State of Rio de
Janeiro, enrolled before CNPJ/MF under No. 33.000.167/0001-01, herein
represented by Xxxxxx Xxxxxxx de Xxxxx Xxxxxx, Brazilian, married, engineer,
bearer of the Identification Card under number RG-2.370.421 IFP, CPF number
000.000.000-00 and Xxxxx Xxxxxxx Xxxxx da Costa Braga, Brazilian, married,
engineer, bearer of the Identification Card under number RG-1.591.798 IFP, CPF
number 012375007-53, hereinafter simply referred to as PETROQUISA,
ODEQUI, PQBA and PETROQUISA hereinafter jointly referred to as Parties or under
indeterminate form as Party;
WHEREAS:
1) The CONTROLLING COMPANIES intend to acquire the stockholding at Norquisa
S.A. (hereinafter referred to as "NORQUISA"), which shall confer to the
CONTROLLING COMPANIES, severely or under agreement with the other
shareholders, the direct or indirect control of COPENE - Petroquimica do
Nordeste S.A., hereinafter simply referred to as COPENE;
2) PETROQUISA holds today the stockholding corresponding to 15.4% of the
voting capital and 21.4% of COPENE's total capital;
3) Once the acquisition of the direct or indirect control of COPENE by the
CONTROLLING COMPANIES is completed, the Parties intend to consolidate its
adjustments through the execution of a shareholders agreement between
PETROQUISA and the direct controller of COPENE;
4) The parties, hereby, intend to set forth the basic terms and conditions to
govern the future COPENE's Shareholders Agreement between PETROQUISA and
the direct controller of COPENE.
The parties decide to formalize this Memorandum of Understandings, with the
objective to set forth the basic terms and conditions governing the future
COPENE's Shareholders Agreement.
FIRST CLAUSE - OBJECT
1.1. By Memorandum of Understandings, the Parties, hereby, agree that, in the
event the CONTROLLING COMPANIES acquire COPENE's direct or indirect
stockholding, the CONTROLLING COMPANIES shall execute or shall cause the
companies holding the COPENE'S direct stockholding to execute the
Shareholders Agreement with PETROQUISA, as relevant minority shareholder,
which shall include the basic terms and conditions established under
Clauses Second, Third and Fourth of this Memorandum of Understandings.
SECOND CLAUSE - THE ASSIGNMENT OF SHARES
2.1. The parties hereby agree that the assignment of shares (i) held by the
Parties or (ii) by the company holding the direct stockholding of COPENE,
or (iii) by its direct or indirect controlled companies holding the
direct stockholding of COPENE, shall be regulated in the COPENE's future
shareholders agreement, including the following basic terms and
conditions:
2.1.1. Foresight of the Parties preemptive right in respect to third parties
acquirer at the acquisition and assignment of the shares representing
COPENE's capital, conferring to Petroquisa the option to enlarge its
stockholding on COPENE for up to 35% (thirty five percent) of the
Company's voting capital.
2.1.2. Foresight of the joint tag along rights of PETROQUISA's stockholding on
COPENE's capital, in the event of sale and assignment of the direct or
indirect control of COPENE to third parties, under the same conditions
offered by the acquirer third party(ies) to the shareholders controlling
COPENE.
THIRD CLAUSE - DECISIONS OF GENERAL MEETING
3.1. The Parties agree that COPENE's future shareholders agreement shall
confer to PETROQUISA the veto right at the decisions taken upon COPENE's
shareholders general meeting, whenever the following subject matters are
discussed:
a) modification to the rights conferred to the shares existing under the
bylaws, negatively effecting the value of COPENE's shares owned by
Petroquisa.
b) alteration, increasing or decreasing of the company's objects scope,
except those which may be required to allow COPENE to operate as an
integrated petrochemical company;
c) increase of the number of members of COPENE's Administration Council.
d) decrease of the number of members of COPENE's Administration Council,
elected by PETROQUISA's nomination;
e) increase of COPENE's capital, upon payment through assets or rights,
unless said assets or rights are related to COPENE's object and the
evaluation of said assets or rights is done, under the terms of the
8th Article of Law number 6.404/76, by a prime investment bank or
independent audit company;
f) merger, split up, incorporation of COPENE into another company or of
another company into COPENE, which may imply the unjustified dilution
of PETROQUISA's shareholding, with the integration of the
second-generation companies into COPENE understood as justified; among
which are included the second-generation companies controlled by the
CONTROLLING COMPANIES, provided it is performed based on the
procedures foreseen above;
g) COPENE's dissolution or liquidation.
First Paragraph - Notwithstanding the provisions under items (e) and (f) of this
clause, it is understood that the Parties shall make, under the same criteria,
the evaluation of the second-generation companies of which they are
shareholders, direct or indirectly, with the purpose of integration to COPENE.
Second Paragraph - Whenever the process of integration of companies to COPENE
imply in capital increase, the Parties shall be ensured the preemptive right to
the acquisition or subscription of new shares, in such way that the opportunity
for the maintenance of the percentile of the respective shareholding previous to
the integration process is ensured, provided the CONTROLLING COMPANIES have
ensured COPENE's control in the general meetings and the majority of members of
the respective administration council.
FOURTH CLAUSE - DECISIONS OF THE ADMINISTRATION COUNCIL
4.1. Observed the provisions under the Third Clause the Parties agree that
COPENE's future shareholder agreement shall confer to PETROQUISA the
right to veto power of the decisions taken within COPENE's Administration
Council meetings, whenever any of subject matter established below are
discussed.
a) acquisition, disposition or burden of goods of the permanent assets or
the execution of contracts under whatever nature, in operations
contemplating values above 30% (thirty percent) of COPENE's net
equity, except, in any case, those operations inherent to the
performance of COPENE's object, requiring PETROQUISA's approval;
b) the execution of juridical business with companies directly or
indirectly controlled, controlling, controlled by the controlling
companies, directly or indirectly, of any of the Parties and, further,
affiliated companies, not applicable however, to the integration of
the second-generation companies controlled by the CONTROLLING
COMPANIES;
c) whatever motion or proposal causing COPENE not to comply with any of
the financial indexes below:
(i) indebtedness index (Projected Net Debt/EBITDA) under 3.5;
(ii) projected profits coverage index (EBITDA/Total profits) above
3.0;
(iii) debt service coverage index, except the trade finance lines
(EBITDA/{Profits + Amortization}) higher than 1.75;
(iv) All indexes are obtained in consideration to the recent history
and projections. The market and prices projections shall be
performed by internationally known companies under said
specialties, while the projections of floating interest rate
shall be performed through Investment Banks.
d) the stockholding in other companies, except those included within the
scope of COPENE's object.
FIFTH CLAUSE - DURATION
5.1. This Memorandum of Understandings shall be effective from the date of
acquisition of COPENE's stockholding by the CONTROLLING COMPANIES,
severely or upon agreement with other shareholders, and remaining in
force (i) for 20 (twenty) years or (ii) until the execution of COPENE's
future shareholders agreement, by the CONTROLLING COMPANIES or its
controlled companies, and PETROQUISA what happens first.
5.2. During the term of duration hereof and the future Shareholders Agreement,
the Parties shall abstain to vote over whatever issues which may place
them under conflict of interests situation before COPENE.
Sole Paragraph: This Memorandum of Understandings shall be considered
automatically revoked, with no burden to any of the Parties, in the event
the CONTROLLING COMPANY does not acquire COPENE's (direct or indirect)
control until 12/31/2001.
SIXTH CLAUSE - GENERAL PROVISIONS
6.1. No common association, partnership or any other kind of organization or
corporate entity between PETROQUISA and the CONTROLLING COMPANY is
established under this Memorandum of Understandings.
6.2. This Memorandum of Understandings represents the complete understanding
between the Parties, in respect to the object hereunder and substitutes
in full, any and all rights and/or obligations arising from other
instruments and/or verbal agreements, relative to the purchase and sale
of shares issued by COPENE or to the exercise of the right to vote in the
General Meeting and COPENE's Administration Council Meeting.
SEVENTH CLAUSE - ARBITRATION
7.1. All questions arising or relative hereto, which are not solved under
specific execution, under the terms of the 118th Article, 3rd paragraph
of law no. 6.404/76 c/c articles 461, 632 and 639 and following of the
Civil Proceedings Code, shall be submitted and solved under definite form
upon arbitration. The arbitration shall be done in the city of Rio de
Janeiro, State of Rio de Janeiro and shall be conducted, in the
Portuguese language, by an arbitration court comprising 03 (three)
arbitrators, indicated according to the arbitration norms of UNCITRAL.
7.2. The arbitration judgement shall be announced within the term of 6 (six)
months, from the date of the institution of the arbitration or from the
replacement of any arbitrator and shall observe the provisions under
articles 26 and 32 of the Law number 9.307, of September 23, 1996. For
the purposes of execution of the arbitration judgement, if it is the
case, the courts of the city of Rio de Janeiro are hereby elected, with
the abdication of any other one, the most privileged it may be.
7.3. The Brazilian laws shall be applicable by the arbitration court, for the
solution of the litigation.
7.4. Each one of the Parties bears the right to access to court: (i) to oblige
the other Party to adopt the arbitration; (ii) in order to obtain the
legal measures focusing the protection of its rights previously to the
institution of the arbitration, with said measures not able to be
considered as a waiver to the arbitration solution; and (iii) so as to
execute whatever solution of the arbitrators, including the arbitration
judgement.
7.5. The provisions under the item 7.1 above do not apply to the questions
relative to interpretation, application or execution of the issues
provided hereunder, relative to rights and obligations susceptible to
specific execution, under the terms of the articles 118 of the Law
6.404/76 c/c 461, 632, 639 and following of the civil Proceedings Code,
with the courts of the county of the Capital of the State of Rio de
Janeiro hereby elected, with the abdication of any other one, the most
privileged it may be.
And, being thus fair and agreed, the contracting Parties sign this Memorandum of
Understandings in 3 (three) counterparts of same tenor and form, before the
undersigned witnesses.
Rio de Janeiro, July 3, 2001.
(s.) illegible (s.) illegible
Odebrecht Quimica S.A. Petroquimica da Bahia S.A.
(s.) illegible
Petrobras Quimica S.A.
Petroquisa
Witnesses:
(s.) illegible
Xxxxxxx X. Xxxxxxx
CPF number 270.434.187-07
CREA number 20745-D
(s.) illegible
Xxxxxxx Xxxxxxx Assuncao
CPF number 000.000.000-00
Id. Card number M-583.730 SSP/MG
