RIGHT OF FIRST REFUSAL REGARDING NEW OPPORTUNITIES IN PETROCHEMICAL BUSINESSES. 9.1 In view of the interest of the Parties to cause Braskem to be their preferential platform for the development of activities in the Petrochemical Sector, with the consequent expansion of its efficiency and productive capacity, the Parties agree that an Opportunity (as defined below) in the Petrochemical Sector or in a Petrochemical Business (as defined below) shall be treated as follows: Opportunity in the Petrochemical Sector A. Right of First Refusal in Relation to an Opportunity. (i) should one Party intend to carry out in the Petrochemical Sector an initiative, opportunity, undertaking, investment, or participation (except for the increase and decrease of the ownership interests currently held and the projects of the Petrochemical Complex of Rio de Janeiro – COMPERJ and the Petrochemical Complex of SUAPE), direct or indirect, in any corporate way, formalized as of the signature of this Shareholders’ Agreement (“Opportunity"), which coincides with the objectives described in Exhibit 9.1 (A) or in countries in which Braskem may act relevantly and diligently, the Party identifying the Opportunity ("Identifying Party") shall offer the Opportunity, under the right of first refusal regime, to Braskem. For the purposes of this Clause, an Opportunity shall be considered formalized when (x) in relation to a greenfield project, the FEL 3 phase has been concluded, and the final investment decision has been taken; and (y) in relation to a xxxxxxxxxx and/or acquisition project, the first binding document between the involved parties has been signed. Each of the Parties hereby represents to the others that it does not have any Opportunity falling under the above items. (ii) Whenever the Opportunity deals with a greenfield project and if Braskem understands that the Opportunity if of its interest, Braskem shall, within at most thirty (30) days counted from the formal presentation of the Opportunity to the Braskem’s Chief Executive Officer, formally express its interest in the Opportunity under the terms that have been expounded, and inform the Parties of its intention to assume the obligation to carry out the necessary studies of economic and financial feasibility of the Opportunity in lieu of the Identifying Party. Such studies shall count on committed funds and the staff required to perform the phases of FEL 1, 2 and 3, so as to guarantee that they are completed as soon as possible. Upon completion of the above process, Braskem shall confirm the exercise of the right of first refusal, irrevocably and irreversibly at this time, and shall have the obligation to effect the Opportunity as approved, and make the investments related thereto. (iii) Whenever the Opportunity deals with a xxxxxxxxxx project and/or a purchase that has been offered to any of the Parties by a third party, the Identifying Party shall, within 10 days of the actual knowledge thereof, submit such Opportunity formally to the Chief Executive Officer of Braskem. While Braskem is analyzing the Opportunity, the Identifying Party shall (x) refrain from performing any act that could adversely affect or hinder the taking of decision by Braskem regarding the Opportunity, and (y) provide Braskem with any and all information about it that shall be disclosed by the third party offering the Opportunity. Should Braskem understand that the Opportunity is of its interest, it shall, within sixty (60) days as from the formal submission of the Opportunity to the Chief Executive Officer of Braskem, formally express its interest in the Opportunity, subject to the provisions below. In the event of imposition by a third party of any timeframe for the manifestation by the Identifying Party and/or Braskem as to their interest in the Opportunity, the timeframes established herein shall be changed so as to contemplate that Braskem shall have a period to formally express itself about the Opportunity not lower than two thirds (2/3) (less 1 business day) of the period given by the third party. (iv) On the other hand, if Braskem has not interest to assume the Opportunity, Braskem shall, within the periods established above, inform the Parties of its intention to not exercise the right of first refusal, and consequently, not assume the Opportunity. Such decision may also be informed at any time during the development of phases FEL 1, 2 or 3. In the event of this Clause, such Identifying Party may take the Opportunity individually or jointly with another partner. The Identifying Party shall then offer to Braskem the right to market the products described in the definition of Petrochemical Sector (“Products”), object of the Opportunity, on such market conditions as shall be satisfactory to both parties. (v) If the Identifying Party does not take the final investment decision concerning the greenfield projects or fails to complete the execution of a binding agreement with a third party in relation to an Opportunity, within three hundred and sixty- five (365) days of the date of formal refusal by Braskem, according to Clause 9.1 (A) (iv), the Identifying Party shall observe again the procedure set out in this Clause as to the extension to Braskem of the right of first refusal. (vi) The following sanctions shall be applicable to the violation of the right of first refusal established in this Clause: (a) Suspension of political rights in this Agreement. Such sanction shall be applicable in case any Identifying Party provably assumes an Opportunity without offering Braskem the right of first refusal established in item (i) above, and provided such violation is not remedied within thirty (30) days after communication of the other Party attesting to the existence of the Opportunity and the non granting of the respective right of first refusal. If the violating Party is Odebrecht, the suspension of political rights shall imply Odebrecht’s obligation, until the violation is remedied, to exercise at all times its voting right in Braskem so as to ensure that the voting orientations that may be given by the Petrobras System shall prevail; (b) Reduction of the political rights of this Agreement. Such sanction shall be applicable if the Identifying Party that assumed the Opportunity fails to ensure to Braskem the right to marketing established in item (iv) above. The reduction of the political rights shall imply, for the violating Party, the limitation to its political rights provided for in this Shareholders’ Agreement as if it held less than thirty percent (30%) and at least eighteen percent (18%) of the voting capital of Braskem, pursuant to Clause 2.8 above. If the violating Party is Odebrecht, the suspension and/or reduction of the political rights shall result in Odebrecht’s obligation to exercise at all times its voting right in Braskem so as to ensure that the voting orientations that may be given by the Petrobras System shall prevail, except for the matters listed in Clause 2.8, which shall continue to prevail by mutual agreement;
Appears in 2 contracts
Samples: Shareholders Agreement, Shareholders Agreement
RIGHT OF FIRST REFUSAL REGARDING NEW OPPORTUNITIES IN PETROCHEMICAL BUSINESSES. 9.1 In view of the interest of the Parties to cause Braskem to be their preferential platform for the development of activities in the Petrochemical Sector, with the consequent expansion of its efficiency and productive capacity, the Parties agree that an Opportunity (as defined below) in the Petrochemical Sector or in a Petrochemical Business (as defined below) shall be treated as follows: Opportunity in the Petrochemical Sector
A. Right of First Refusal in Relation to an Opportunity.
(i) should one Party intend to carry out in the Petrochemical Sector an initiative, opportunity, undertaking, investment, or participation (except for the increase and decrease of the ownership interests currently held and the projects of the Petrochemical Complex of Rio de Janeiro – COMPERJ and the Petrochemical Complex of SUAPE), direct or indirect, in any corporate way, formalized as of the signature of this Shareholders’ Agreement (“Opportunity"), which coincides with the objectives described in Exhibit 9.1 (A) or in countries in which Braskem may act relevantly and diligently, the Party identifying the Opportunity ("Identifying Party") shall offer the Opportunity, under the right of first refusal regime, to Braskem. For the purposes of this Clause, an Opportunity shall be considered formalized when (x) in relation to a greenfield project, the FEL 3 phase has been concluded, and the final investment decision has been taken; and (y) in relation to a xxxxxxxxxx and/or acquisition project, the first binding document between the involved parties has been signed. Each of the Parties hereby represents to the others that it does not have any Opportunity falling under the above items.
(ii) Whenever the Opportunity deals with a greenfield project and if Braskem understands that the Opportunity if of its interest, Braskem shall, within at most thirty (30) days counted from the formal presentation of the Opportunity to the Braskem’s Chief Executive Officer, formally express its interest in the Opportunity under the terms that have been expounded, and inform the Parties of its intention to assume the obligation to carry out the necessary studies of economic and financial feasibility of the Opportunity in lieu of the Identifying Party. Such studies shall count on committed funds and the staff required to perform the phases of FEL 1, 2 and 3, so as to guarantee that they are completed as soon as possible. Upon completion of the above process, Braskem shall confirm the exercise of the right of first refusal, irrevocably and irreversibly at this time, and shall have the obligation to effect the Opportunity as approved, and make the investments related thereto.
(iii) Whenever the Opportunity deals with a xxxxxxxxxx project and/or a purchase that has been offered to any of the Parties by a third party, the Identifying Party shall, within 10 days of the actual knowledge thereof, submit such Opportunity formally to the Chief Executive Officer of Braskem. While Braskem is analyzing the Opportunity, the Identifying Party shall (x) refrain from performing any act that could adversely affect or hinder the taking of decision by Braskem regarding the Opportunity, and (y) provide Braskem with any and all information about it that shall be disclosed by the third party offering the Opportunity. Should Braskem understand that the Opportunity is of its interest, it shall, within sixty (60) days as from the formal submission of the Opportunity to the Chief Executive Officer of Braskem, formally express its interest in the Opportunity, subject to the provisions below. In the event of imposition by a third party of any timeframe for the manifestation by the Identifying Party and/or Braskem as to their interest in the Opportunity, the timeframes established herein shall be changed so as to contemplate that Braskem shall have a period to formally express itself about the Opportunity not lower than two thirds (2/3) (less 1 business day) of the period given by the third party.
(iv) On the other hand, if Braskem has not interest to assume the Opportunity, Braskem shall, within the periods established above, inform the Parties of its intention to not exercise the right of first refusal, and consequently, not assume the Opportunity. Such decision may also be informed at any time during the development of phases FEL 1, 2 or 3. In the event of this Clause, such Identifying Party may take the Opportunity individually or jointly with another partner. The Identifying Party shall then offer to Braskem the right to market the products described in the definition of Petrochemical Sector (“Products”), object of the Opportunity, on such market conditions as shall be satisfactory to both parties.
(v) If the Identifying Party does not take the final investment decision concerning the greenfield projects or fails to complete the execution of a binding agreement with a third party in relation to an Opportunity, within three hundred and sixty- five (365) days of the date of formal refusal by Braskem, according to Clause Xxxxxx 9.1 (A) (iv), the Identifying Party shall observe again the procedure set out in this Clause as to the extension to Braskem of the right of first refusal.
(vi) The following sanctions shall be applicable to the violation of the right of first refusal established in this Clause:
(a) Suspension of political rights in this Agreement. Such sanction shall be applicable in case any Identifying Party provably assumes an Opportunity without offering Braskem the right of first refusal established in item (i) above, and provided such violation is not remedied within thirty (30) days after communication of the other Party attesting to the existence of the Opportunity and the non granting of the respective right of first refusal. If the violating Party is Odebrecht, the suspension of political rights shall imply Odebrecht’s obligation, until the violation is remedied, to exercise at all times its voting right in Braskem so as to ensure that the voting orientations that may be given by the Petrobras System shall prevail;
(b) Reduction of the political rights of this Agreement. Such sanction shall be applicable if the Identifying Party that assumed the Opportunity fails to ensure to Braskem the right to marketing established in item (iv) above. The reduction of the political rights shall imply, for the violating Party, the limitation to its political rights provided for in this Shareholders’ Agreement as if it held less than thirty percent (30%) and at least eighteen percent (18%) of the voting capital of Braskem, pursuant to Clause 2.8 above. If the violating Party is Odebrecht, the suspension and/or reduction of the political rights shall result in Odebrecht’s obligation to exercise at all times its voting right in Braskem so as to ensure that the voting orientations that may be given by the Petrobras System shall prevail, except for the matters listed in Clause 2.8, which shall continue to prevail by mutual agreement;
Appears in 1 contract
Samples: Shareholder Agreement
RIGHT OF FIRST REFUSAL REGARDING NEW OPPORTUNITIES IN PETROCHEMICAL BUSINESSES. 9.1 In view of the interest of the Parties to cause Braskem to be their preferential platform for the development of activities in the Petrochemical Sector, with the consequent expansion of its efficiency and productive capacity, the Parties agree that an Opportunity (as defined below) in the Petrochemical Sector or in a Petrochemical Business (as defined below) shall be treated as follows: Opportunity in the Petrochemical Sector:
A. Right of First Refusal in Relation to an Opportunity.
(i) should Should one Party intend to carry out in the Petrochemical Sector an initiative, opportunity, undertaking, investment, or participation (except for the increase and decrease of the ownership interests currently held and the projects of the Petrochemical Complex of Rio de Janeiro – COMPERJ and the Petrochemical Complex of SUAPE), direct or indirect, in any corporate way, formalized as of the signature of this Shareholders’ Agreement (“Opportunity"), which coincides with the objectives described in Exhibit 9.1 (A) or in countries in which Braskem may act relevantly and diligently, the Party identifying the Opportunity ("Identifying Party") shall offer the Opportunity, under the right of first refusal regime, to Braskem. For the purposes of this Clause, an Opportunity shall be considered formalized when (x) in relation to a greenfield project, the FEL 3 phase has been concluded, and the final investment decision has been taken; and (y) in relation to a xxxxxxxxxx and/or acquisition project, the first binding document between the involved parties has been signed. Each of the Parties hereby represents to the others that it does not have any Opportunity falling under the above items.
(ii) Whenever the Opportunity deals with a greenfield project and if Braskem understands that the Opportunity if of its interest, Braskem shall, within at most thirty (30) days counted from the formal presentation of the Opportunity to the Braskem’s Chief Executive Officer, formally express its interest in the Opportunity under the terms that have been expounded, and inform the Parties of its intention to assume the obligation to carry out the necessary studies of economic and financial feasibility of the Opportunity in lieu of the Identifying Party. Such studies shall count on committed funds and the staff required to perform the phases of FEL 1, 2 and 3, so as to guarantee that they are completed as soon as possible. Upon completion of the above process, Braskem shall confirm the exercise of the right of first refusal, irrevocably and irreversibly at this time, and shall have the obligation to effect the Opportunity as approved, and make the investments related thereto.
(iii) Whenever the Opportunity deals with a xxxxxxxxxx project and/or a purchase that has been offered to any of the Parties by a third party, the Identifying Party shall, within 10 days of the actual knowledge thereof, submit such Opportunity formally to the Chief Executive Officer of Braskem. While Braskem is analyzing the Opportunity, the Identifying Party shall (x) refrain from performing any act that could adversely affect or hinder the taking of decision by Braskem regarding the Opportunity, and (y) provide Braskem with any and all information about it that shall be disclosed by the third party offering the Opportunity. Should Braskem understand that the Opportunity is of its interest, it shall, within sixty (60) days as from the formal submission of the Opportunity to the Chief Executive Officer of Braskem, formally express its interest in the Opportunity, subject to the provisions below. In the event of imposition by a third party of any timeframe for the manifestation by the Identifying Party and/or Braskem as to their interest in the Opportunity, the timeframes established herein shall be changed so as to contemplate that Braskem shall have a period to formally express itself about the Opportunity not lower than two thirds (2/3) (less 1 business day) of the period given by the third party.
(iv) On the other hand, if Braskem has not interest to assume the Opportunity, Braskem shall, within the periods established above, inform the Parties of its intention to not exercise the right of first refusal, and consequently, not assume the Opportunity. Such decision may also be informed at any time during the development of phases FEL 1, 2 or 3. In the event of this Clause, such Identifying Party may take the Opportunity individually or jointly with another partner. The Identifying Party shall then offer to Braskem the right to market the products described in the definition of Petrochemical Sector (“Products”), object of the Opportunity, on such market conditions as shall be satisfactory to both parties.
(v) If the Identifying Party does not take the final investment decision concerning the greenfield projects or fails to complete the execution of a binding agreement with a third party in relation to an Opportunity, within three hundred and sixty- sixty-five (365) days of the date of formal refusal by Braskem, according to Clause 9.1 (A) (iv), the Identifying Party shall observe again the procedure set out in this Clause as to the extension to Braskem of the right of first refusal.
(vi) The following sanctions shall be applicable to the violation of the right of first refusal established in this Clause:
(a) Suspension of political rights in this Agreement. Such sanction shall be applicable in case any Identifying Party provably assumes an Opportunity without offering Braskem the right of first refusal established in item (i) above, and provided such violation is not remedied within thirty (30) days after communication of the other Party attesting to the existence of the Opportunity and the non granting of the respective right of first refusal. If the violating Party is Odebrecht, the suspension of political rights shall imply Odebrecht’s obligation, until the violation is remedied, to exercise at all times its voting right in Braskem so as to ensure that the voting orientations that may be given by the Petrobras System shall prevail;
(b) Reduction of the political rights of this Agreement. Such sanction shall be applicable if the Identifying Party that assumed the Opportunity fails to ensure to Braskem the right to marketing established in item (iv) above. The reduction of the political rights shall imply, for the violating Party, the limitation to its political rights provided for in this Shareholders’ Agreement as if it held less than thirty percent (30%) and at least eighteen percent (18%) of the voting capital of Braskem, pursuant to Clause 2.8 above. If the violating Party is Odebrecht, the suspension and/or reduction of the political rights shall result in Odebrecht’s obligation to exercise at all times its voting right in Braskem so as to ensure that the voting orientations that may be given by the Petrobras System shall prevail, except for the matters listed in Clause 2.8, which shall continue to prevail by mutual agreement;
Appears in 1 contract
Samples: Shareholders Agreement (Braskem Sa)
