Exhibit 3.04
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING REGARDING
SHAREHOLDERS AGREEMENT
COPENE - PETROQUIMICA DO NORDESTE S.A.
By this private instrument, the parties:
On the one hand:
(a) ODEBRECHT S.A., a joint stock company with headquarters at Av. ▇▇▇▇ ▇▇▇▇▇
Filho, n.(o) 2.841, Paralela, ▇▇▇▇▇▇▇▇ - ▇▇, enrolled at the Tax Roll of Legal
Entities of the Treasury Department (CNPJ/MF) under # 15.105.588/0001-15, herein
represented by its Directors, Messrs. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, hereinafter referred to as ODEBRECHT;
On the other hand:
(b) PETROBRAS QUIMICA S.A. - PETROQUISA, a joint stock company with headquarters
in the capital of the state of Rio de Janeiro at ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇.(▇)
▇▇, ▇▇▇▇▇▇, enrolled at the Tax Roll of Legal Entities of the Treasury
Department (CNPJ/MF) under # 33.000.167/0001-01, herein represented by its
President, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇ ▇▇▇▇▇▇, and by its Director, ▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Brunnet, hereinafter referred to as PETROQUISA;
ODEBRECHT and PETROQUISA hereinafter jointly referred to as Parties or,
individually, Party,
And as Consenting Parties:
(c) PETROQUIMICA DA BAHIA S.A., a joint stock company with headquarters in the
city of Salvador, state of Bahia, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, n.(o) 57, 2(0) andar,
parte, enrolled at the Tax Roll of Legal Entities of the Treasury Department
(CNPJ/MF) under # 13.943.667/0001-70, herein represented by its Directors,
Messrs. Andre Philippe ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Junior,
hereinafter referred to as PQBA;
(d) NORDESTE QUIMICA S.A. - NORQUISA, a joint stock company with headquarters in
the city of Camacari, state of Bahia, at ▇▇▇ ▇▇▇▇▇, ▇.(▇) ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Polo Petroquimico, enrolled at the Tax Roll of Legal Entities of the Treasury
Department (CNPJ/MF) under # 15.659.535/0001-45, herein represented by its
attorneys, Messrs. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Junior and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
hereinafter referred to as NORQUISA;
(e) COPENE - PETROQUIMICA DO NORDESTE S.A., a joint stock company with
headquarters in the city of Camacari, state of Bahia, at ▇▇▇ ▇▇▇▇▇, ▇.(▇) ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Polo Petroquimico, enrolled at the Tax Roll of Legal Entities
of the Treasury Department (CNPJ/MF) under # 42.150.391/0001-70, herein
represented by its legal representatives, Messrs. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de Sa and
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, hereinafter referred to as COMPANY; and
(f) PETROLEO BRASILEIRO S.A. - PETROBRAS, controller of PETROQUISA, hereinafter
referred to as PETROBRAS, when appearing individually, a private and public
joint stock company with headquarters in the city of Rio de Janeiro, state of
Rio de Janeiro, at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇.(▇) ▇▇, enrolled at the Tax
Roll of Legal Entities of the Treasury Department (CNPJ/MF) under #
33.000.167/0001-01, herein represented by its President, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇;
WHEREAS:
1) ODEBRECHT, PQBA and PETROQUISA signed, on July 3, 2001, the "Memorandum of
Understanding for the Execution of Agreement of Shareholders of Copene"
("Memorandum") defining the terms and conditions that shall rule the future
agreement of shareholders of the Company;
2) The Managing Board of the Company shall meet on this date to decide on the
implementation, by the Company, of the so-called "Braskem Project", by which the
Company (i) shall incorporate OPP Produtos Petroquimicos S.A. and 52114
Participacoes S.A. and, as a result, the COMPANY shall hold, either directly or
indirectly, among other assets, stockholdings in the second generation companies
controlled by and/or associated to ODEBRECHT and PQBA, including Odebrecht
Quimica S/A, OPP Quimica S/A, Trikem S.A., OPP Borealis, Companhia Petroquimica
do Sul - Copesul ("COPESUL") and Nitrocarbono S.A., and (ii) shall be named
BRASKEM S.A. ("Reorganization");
3) The Parties and PQBA intend to amend and ratify the terms of the Memorandum,
as well as to establish additional terms and conditions that shall rule their
relationship as shareholders of the COMPANY;
The Parties decide to sign this Amendment to the Memorandum of Understandings
for the Execution of Agreement of Shareholders of Copene ("Amendment"), with the
following terms and conditions:
CHAPTER I - RATIFICATION OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES AS PER THE
MEMORANDUM
1.1 Rights and Obligations of the Parties. The Parties expressly ratify the
rights they currently have and their respective obligations as shareholders of
the COMPANY, in special, but not limited to, those set forth in the Memorandum,
which are expressly maintained, notwithstanding the changes in their respective
stockholdings arising out of the implementation of the Reorganization.
1.2 Ratification of the Memorandum. The provisions of the Memorandum not
expressly changed by the provisions of this Amendment remain unchanged and in
force.
1.3 Execution of Agreement of Shareholders. The Parties herein commit themselves
to sign the agreement of shareholders of the COMPANY within the maximum term of
06 (six) months from this date, which shall contain, in details, the terms and
conditions foreseen in the Memorandum and this Amendment. Notwithstanding, it is
clear and agreed that the provisions of the Memorandum and this Amendment
(including, but not limited to, those related to the participation of PETROQUISA
in the Managing Board of the Company by means of the election of, at least, 02
(two) effective members and their respective substitutes, and the exercise of
the rights of veto foreseen in Clauses 3rd and 4th of the Memorandum) are
already in full force and subject to specific execution under the terms of Art.
118 of Law 6.404/76, as amended from time to time, and they shall continue as
such even though the above mentioned Agreement of Shareholders is not executed
due to any reason.
1.4 Consent. NORQUISA, PQBA and PETROBRAS commit themselves to respecting the
provisions of the Memorandum and this Amendment, as the case might be. NORQUISA
and PQBA also commit themselves to exercising the vote of their shares issued by
the COMPANY and, in case of PQBA, also the vote of its shares issued by
NORQUISA, together with ODEBRECHT, so as to ensure the full exercise, by
PETROQUISA, of the rights it currently has according to the law, the Memorandum
and this Amendment.
1.5 By-laws. The Controllers (as defined in Clause 2.1 below) herein commit
themselves to exercising their right of vote in the COMPANY so as to prevent the
COMPANY's by-laws from containing, now or in the future, any provision
conflicting with the provisions of the Memorandum, of the Amendment and, once
the Agreement of Shareholders is signed, of said Agreement, or able to impede,
somehow, the exercise, by PETROQUISA, of its rights foreseen in the Memorandum,
in the Amendment and, once the Agreement of Shareholders is signed, in said
Agreement.
CHAPTER II - PETROQUISA'S OPTION TO SHARE THE CONTROL OF THE COMPANY, UNDER
EQUAL CONDITIONS, WITH THE CONTROLLERS
2.1 Option to Buy/Subscribe Common Shares. By this instrument, ODEBRECHT
irrevocably grants to PETROQUISA an option ("Option to Buy/Subscribe - Control")
in order for PETROQUISA to subscribe and buy common and preferred shares issued
by the COMPANY, which confer on PETROQUISA an equity equal to the voting equity
and interest in the total capital of the COMPANY that shall be directly held,
after said increase, jointly by ODEBRECHT, PQBA and NORQUISA ("Controllers") in
the total and voting corporate capital of the COMPANY ("Control - Option
Shares"). The purchase of Control - Option Shares by PETROQUISA shall be made as
follows:
(i) subscription of common and preferred Control - Option Shares at the
proportion existing between the types of shares on the date of this
subscription, by PETROQUISA, to be issued in increase of capital of the COMPANY
and paid up by PETROQUISA upon the contribution, to the COMPANY, of its shares
in the capital of COPESUL, which increase the Controllers, from now, commit
themselves to approving with their votes, waiving their rights of preference in
the subscription in behalf of PETROQUISA.
(ii) if the Control - Option Shares subscribed as per the above item (i) are not
enough for PETROQUISA to hold an equity equal to the voting and total equity
then directly held by the Controllers in the corporate capital of the COMPANY,
ODEBRECHT shall be bound to sell the remaining Control - Option Shares to
PETROQUISA, under the terms and conditions foreseen in this Chapter II.
2.1.1 The Option to Buy/Subscribe - Control may be exercised by PETROQUISA one
time only, and it shall comprise all of the Control - Option Shares.
2.1.2 The Option to Buy/Subscribe - Control may be exercised by PETROQUISA upon
written notice delivered to ODEBRECHT in the form of Clause 4.6 below, on the
last business day of each month, from this month up to and including 04/30/2005.
2.1.3 On the date corresponding to the 90th (ninetieth) day or, if there is a
Relevant Difference of Evaluation, on the 120th (one hundred twentieth) day from
the day on which ODEBRECHT receives a written notice about the exercise of the
Option to Buy/Subscribe - Control mentioned in Clause 2.1.1 ("Date of Option to
Buy/Subscribe - Control"), the Parties shall attend the general meeting called
for the purposes of deciding on the increase of capital of the COMPANY as per
the above Clause 2.1 (i), and shall approve the issue, by the COMPANY, of the
Control - Option Shares and their subscription by PETROQUISA, at the Option
Price obtained as per Clause 2.1.6, which shall pay them up upon the
contribution, to the COMPANY, of all its shares of capital of COPESUL, at the
COPESUL Evaluation Value obtained according to the evaluation to be made
according to the same Clause 2.1.6.
2.1.4 If on the business day subsequent to the end of the term for the exercise
of the right of preference of the other shareholders of the COMPANY, which shall
be determined as 30 (thirty) days from the Date of Option to Buy/Subscribe -
Control, the Control - Option Shares subscribed as per the above Clause 2.1.3
are not enough for PETROQUISA to hold an equity equal to the voting equity and
interest in the total capital then directly held by the Controllers in the
corporate capital of the COMPANY, the Parties shall appear at the COMPANY's
headquarters and PETROQUISA shall purchase and ODEBRECHT shall sell and transfer
to PETROQUISA the Control - Option Shares necessary for PETROQUISA to hold a
voting equity and interest in the total capital of the COMPANY equal to the
equity then held by the Controllers, at the Option Price applicable as per the
following Clause 2.1.6, up front, in national currency, upon credit in the
checking account indicated by ODEBRECHT for this purpose.
2.1.5 The Control - Option Shares shall be sold flat, i.e., they shall be worthy
of verified profits from the moment of their subscription or purchase, as the
case might be.
2.1.6 The price of Control - Option Shares ("Option Price") shall correspond to
the percentage - represented by them - of the economic value of 100% of the
COMPANY, obtained based on classical market criteria, under the terms of this
Clause 2.1.6, and the value of the shares issued by COPESUL to be contributed to
the COMPANY by PETROQUISA ("COPESUL Evaluation Value") shall correspond to the
percentage - represented by them - of the economic value of 100% of COPESUL,
calculated also based on classical market criteria, under the terms of this
Clause 2.1.6, both companies being evaluated according to the same criteria and
on the same basic date, without control premium. For the purposes of this Clause
2.1.6, the Parties commit themselves to proceeding as follows:
(a) within the term of 20 (twenty) days from the date on which the notice
mentioned in Clause 2.1.1 is delivered, ODEBRECHT, on the one hand, and
PETROQUISA, on the other hand, shall, each of them, hire a first class
investment bank to perform the evaluations of the COMPANY and COPESUL for
the purposes of this Clause. The banks chosen shall be informed by each one
of the Parties to the other, within the term of 5 (five) days set forth
herein, upon written notice prepared according to the following Clause 4.6.
(b) each bank shall have 60 (sixty) days to present to the Parties the
results of their evaluations. If the difference between the results
obtained, either in the evaluation of the COMPANY or in the evaluation of
COPESUL, is lower than 10% (ten per cent), the Option Price and/or COPESUL
Evaluation Value, as the case might be, shall correspond to the
arithmetical mean of the two evaluations and shall be final, binding the
Parties for the purposes of the Option to Buy/Subscribe - Control. If there
is a difference of more than 10% in any or both of the evaluations
("Relevant Difference of Evaluation"), the two banks initially hired shall
have the term of 5 (five) days to indicate a third first class investment
bank to work as referee. (c) the referee may use all work papers of the
banks originally hired by the Parties and shall have 30 (thirty) days from
the date of its hiring to inform to the Parties the result of its
evaluation, which, in its turn, shall be final, binding the Parties for the
purposes of the Option to Buy/Subscribe - Control, provided that,
notwithstanding the result presented by the referee, the final Option Price
and/or COPESUL Evaluation Value, as the case might be, may be neither lower
than the least evaluation nor higher than the greatest evaluation made by
the banks originally hired by the Parties, according to this Clause. (d)
each Party shall pay the costs with hiring of the investment bank chosen by
it and, as the case might be, ODEBRECHT, on the one hand, and PETROQUISA,
on the other hand, shall each pay 50% of the costs with hiring of the
referee. (e) any eventual delay in the compliance, by the banks they hired,
with the obligations set forth herein or necessary to complete the
evaluations, shall not damage PETROQUISA's right to fully exercise its
rights to purchase the Control - Option Shares.
2.1.8 With the exercise of the Option to Buy/Subscribe - Control, the purchase
and sale/subscription of the Control - Option Shares shall be considered perfect
and finished, irrespective of any additional formality, and its fulfillment may
be demanded irrespective of conditions, including upon specific execution.
2.1.9 In the event of exercise of the Option to Buy/Subscribe - Control by
PETROQUISA, subject to the provisions of the above Clause 2.1 (i), ODEBRECHT
commits itself to sale to PETROQUISA the Control - Option Shares free and clear
of CONSENTING PARTY and all restrictions, preferences, usufructs or other
guarantees and/or onus of any nature ("Onus"). If by the time of the exercise of
the Option to Buy/Subscribe - Control by PETROQUISA the Control - Option Shares
are subject to any Onus, PETROQUISA may, at its sole discretion, use a part of
or the entire Option Price, as the case might be, to release the burdened
Control - Option Shares or retain the entirety of the Option Price until all the
Option Shares have been transferred to PETROQUISA free and clear of any and all
Onus.
2.1.10 Notwithstanding the provisions of the above Clause 2.1.9, the voting
rights and equity rights related to all the Control - Option Shares shall be
exercised by PETROQUISA from the date of Option to Buy/Subscribe - Control,
without any restriction.
2.2 Execution of Agreement of Shareholders - Control Sharing. By this
instrument, the Parties and Consenting Parties agree, from now, that if
PETROQUISA exercises its Option to Buy/Subscribe - Control, the Controllers
shall sign or cause the company(ies) holding control shares of the COMPANY to
sign, on the Date of Option to Buy/Subscribe - Control, the agreement of
shareholders with PETROQUISA, which shall bind its respective voting shares in
the capital of the COMPANY and include the basic terms and conditions set forth
in this Clause 2.2, as follows.
2.2.1. The vote of the Parties at general meetings and meeting of the Managing
Board of the COMPANY shall be determined in previous meetings at which the
Controllers jointly, on the one hand, and PETROQUISA, on the other hand, shall
have the same number of votes, which voting shall be always exercised in group,
the sporadic or formal alliances with shareholders outside the control group
being forbidden. In the absence of an agreement as to the exercise of vote, the
Parties, jointly, shall not approve the subject to be submitted to the general
meetings or meetings of the Managing Board, as the case might be.
2.2.2 The Controllers, jointly, on the one hand, and PETROQUISA, on the other
hand, shall have equal political rights, including the right to elect the same
number of representatives for the Managing Board of the COMPANY.
2.2.3 The mechanism of right of preference in the purchase of shares under equal
conditions with third parties shall be foreseen in case of direct or indirect
sale, by PETROQUISA and/or by the Controllers, of the common shares issued by
the COMPANY held by them.
2.2.4 Both PETROQUISA and the Controllers shall have the right of joint sale
("tag along") in the event of sale, to third parties, of their common shares,
under the same conditions as those offered by the purchasing third party,
without discount, being that the tag along right foreseen herein shall apply
both to direct sales and to indirect sales of control shares made by ODEBRECHT
and/or PQBA and/or Petroleo Brasileiro S.A. - PETROBRAS, as the case might be.
2.2.4.1 If any of the Controllers and/or PETROQUISA receives an offer and the
other does not exercise its right of preference or tag along as foreseen in the
above Clauses 2.2.3 and 2.2.4, respectively, the Party that has received the
offer may request that the other also sells its equity to interested third
parties ("drag along"), conditioned to obtaining a sale price of, at least, the
one obtained by means of an independent evaluation, as foreseen in the above
Clause 2.1.6 and next ones. The Party that intends to drag along shall inform
the other with antecedence so that the minimum price may be established before
the beginning of the sale process, and said price shall be valid for 06 (six)
months, being extendable for 6 (six) months upon updating of the respective
evaluation.
2.2.4.2 The rights and obligations related to transfers of control shares of the
COMPANY foreseen in the above Clauses 2.2.3, 2.2.4 and 2.2.4.1 shall not apply
in case of transfer of said shares by PETROQUISA and/or the Controllers, as the
case might be, to any Affiliate of its, which shall adhere to this instrument
for all purposes and effects.
2.2.4.3 For the purposes of the Memorandum and this Amendment, "Affiliate" means
any and all party directly or indirectly controlled by, controller of or under
the common control with certain parties, being that "control" shall have the
definition attributed by Art. 116 of Law 6.404/76, as amended from time to time.
2.2.5 After the Date of Option to Buy/Subscribe - Control, none of the Parties
may purchase additional common shares issued by the COMPANY from third parties,
except upon mutual agreement or as authorized by the Agreement of Shareholders.
If PETROQUISA holds a voting equity in the COMPANY greater than that held by the
Controllers as a result of the exercise of the Option to Buy/Subscribe - Control
effected by the contribution of the shares of the capital of COPESUL or by any
other means, or if the Controllers hold a voting equity in the COMPANY greater
than that held by PETROQUISA as a result of corporate reorganizations or capital
refunds involving the Controllers and their respective controlled/associated
companies or mandatory public offers or by any other means ("Surplus Equity"),
the Surplus Equity shall not be regarded as control shares, thus being excluded
from the Agreement of Shareholders for all purposes and effects.
2.2.5.1 The Party that holds the least equity shall be entitled to, at any time,
purchase 50% (fifty per cent) of the Surplus Equity at a price equivalent to the
cost of purchase of the Surplus Equity, corrected based on the CDI. If the cost
of purchase of the Surplus Equity can not be determined, the price to purchase
50% of said equity shall be determined by independent evaluation, as foreseen in
the above Clause 2.1.6 and next ones.
2.2.6 PETROQUISA agrees that if it exercises and consummates the Option to
Buy/Subscribe - Control, it shall, after said exercise and consummation,
dispose, in the subsequent 18 (eighteen) months, of its investments in companies
that are competitors of the COMPANY, either directly or by means of related
companies, provided that, from the consummation of the Option to Buy/Subscribe -
Control, PETROQUISA shall refrain from exercising rights of participation in
managing boards of said companies, or shall exercise said rights by means of
parties not related to the staff of PETROQUISA. The provisions of this Clause
shall not apply to minority interests held by PETROQUISA in Competitors of the
COMPANY not granting on PETROQUISA a right of participation in its managing
boards.
2.2.6 For the purposes of this Amendment, Competitors of the COMPANY are
companies acting in a competing activity in Brazil in respect to the
preponderant activities of the COMPANY on the Date of Option to Buy/Subscribe -
Control.
2.2.7.1 If after the term of 18 (eighteen) months foreseen in the above Clause
2.2.6 PETROQUISA has not disposed of any of its investments mentioned therein,
then, from the end of said term, PETROQUISA's exercise of the rights foreseen in
the Agreement of Shareholders shall be temporarily suspended, as purchased as a
result of the exercise of the Option to Buy/Subscribe - Control; in any case,
PETROQUISA's exercise of the rights foreseen in the Memorandum shall be
maintained. Once effected, by PETROQUISA, the liquidation or sale of its
investments in companies that are Competitors of the COMPANY, the exercise of
all rights of PETROQUISA as holder of level interest with the Controllers, as
foreseen in the Agreement of Shareholders, shall be automatically restored.
2.2.8 The Agreement of Shareholders shall be in force for the term of 20
(twenty) years from the Date of Option to Buy/Subscribe - Control.
2.2.9 The terms and conditions of the Agreement of Shareholders that shall be in
force from the Date of Option to Buy/Subscribe - Control subject of this Clause
2.2 shall appear, in full, in the Agreement of Shareholders to be entered into
according to Clause 1.3 of this Amendment. Notwithstanding, if said Agreement of
Shareholders is not, due to any reason, entered into, the relationship of the
Parties shall be ruled by the principles and conditions set forth in this Clause
2.2 and other applicable provisions of the Memorandum and this Amendment, which
shall remain in full force for all purposes.
CHAPTER III - MAINTENANCE OF THE RIGHTS FORESEEN IN THE MEMORANDUM
3.1. Even though the Option to Buy/Subscribe - Control is not exercised, the
Parties expressly agree that all the rights foreseen in the Memorandum and this
Amendment shall be maintained, including, but not limited to the rights of veto,
of participation of PETROQUISA in the Managing Board of the COMPANY and of tag
along, irrespective of its stockholding.
3.2. The right of preference foreseen in Cause 2.1.1 of the Memorandum shall
cease to be in force from May 1st, 2005. If the Option to Buy/Subscribe -
Control is not exercised, provided that the provisions of the following Clauses
4.1 and 4.2 are observed in respect to the transfers of shares by PETROQUISA.
CHAPTER IV - GENERAL PROVISIONS
4.1 Exclusion of the Shares of PETROQUISA from the Memorandum and the Amendment.
PETROQUISA may, at its sole discretion and at any time, until the consummation
of the purchase/subscription of the Control - Option Shares and if the Option to
Buy/Subscribe - Control is not exercised, sell any and all of its common and/or
preferred shares issued by the COMPANY to third parties, without observing the
right of preference foreseen in the Second Clause of the Memorandum and, in this
case, the common and preferred shares to be sold shall be excluded from the
Memorandum and this Amendment. In any case, all the rights of PETROQUISA
foreseen in the Memorandum and this Amendment shall remain in full force and
effect while PETROQUISA holds any stockholding represented by common shares
issued by the COMPANY. after the consummation of the purchase/subscription of
the Control - Option Shares, any sale of common shares issued by the COMPANY
shall observe the provisions of the above Clauses 2.2.3, 2.2.4 and 2.4.1.
4.2 Assignment of Rights. PETROQUISA may, at any time and at its sole
discretion, sell the whole interest then held by it in the voting capital of the
COMPANY to a third party, together with al the rights it is assured by the
Memorandum and this Amendment, including, but not limited to, the right of veto
and participation in the Managing Board of the COMPANY, exception being
exclusively made to the right to Option to Buy/Subscribe - Control foreseen in
Chapter II of this Amendment, which is established under the concept of intuitu
personae and, therefore, it may be exercised only by PETROQUISA and/or their
Affiliates appointed for this purpose. In this case, the third-party purchaser
shall adhere, in writing, to all the terms and conditions foreseen in the
Memorandum and the Amendment. The provisions of this Clause 4.2 shall apply
exclusively to the sale of the entirety, i.e., in all, of the interest in the
voting capital of the COMPANY then held by PETROQUISA.
4.2.1. None of the Controllers may assign this Amendment and/or the Memorandum
in all or in part without the previous written consent of PETROQUISA.
4.3 Specific Performance. With no prejudice to other means of judicial or
extra-judicial action legally available to the Parties, the provisions and
obligations assumed in Chapters II and III bear specific performance, under the
terms of articles 461, 632, 639 and following ones of the Code of Civil
Procedure, and eventual damages shall not mean proper satisfaction of the rights
of the Parties, and the forum of the county of the capital of the state of Rio
de Janeiro is hereby elected, with renunciation to any other one, the most
privileged it might be.
4.4 Registration. This instrument, including the options set forth herein, shall
be registered before the depository of the shares of the COMPANY, under the
terms of article 40 of Law # 6.404/76.
4.5 Independence. The options of sale and purchase set forth in this instrument
are hired independently, and they shall remain in force and produce, in full,
their effects, even though the Agreement of Shareholders is not entered into or
the Memorandum (as amended) is terminated, due to any reason, before the end of
the respective term of life of said options.
4.6 Notices. All the notices, consents, requests and other communications
foreseen herein are made in writing and delivered personally, sent by means of
registered letter or a recognized courier service (both with acknowledgement of
receipt), in any case with copy by fax, to the address and individuals indicated
below:
If to the Controllers:
Odebrecht S.A.
Care of: CEO
Address: ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.(▇)▇.▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ - ▇▇
Fax: (▇▇) ▇▇▇-▇▇▇▇
If to PETROQUISA:
Address: Avenida Republica do Chile, n.(o)65, 9(0)andar, sala 902 C
Rio de Janeiro - RJ
Care of: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇ ▇▇▇▇▇▇ - President
Fax #s: (▇▇) ▇▇▇▇-▇▇▇▇ and (▇▇) ▇▇▇▇-▇▇▇▇
If to the COMPANY:
Address: ▇▇▇ ▇▇▇▇▇, ▇.(▇)▇▇▇▇, Complexo Basico, Polo Petroquimico - Camacari -
BA
Care of: CEO
Fax: (▇▇) ▇▇▇-▇▇▇▇
4.6.1 The notices delivered according to Clause 4.6 shall be considered as being
given: (i) when delivered, if delivered personally; and (ii) when received, if
sent by mail or courier service.
4.6.2 Any Party to the agreement may change the address to which the notice
shall be sent by means of a written notice sent to the other Parties to the
agreement according to this clause 4.6.
4.7 Consent. PQBA, the COMPANY, NORQUISA sign this Amendment as consenting
parties for all purposes and effects of Art. 118 of Law 6.404/76, as amended
from time to time. PETROBRAS signs this Amendment only for the purposes of the
above Clause 2.2.3.
4.8 Binding Effect. This Amendment is irrevocably signed and binds the Parties
by themselves and their heirs and successors under any concept.
4.9 Changes. No change to this Amendment and the Memorandum shall be valid
unless if made in writing and signed by all the parties.
4.10 Tolerance, Waiver. No term granted or waiver by any of the Parties to the
others in respect to the terms of this Amendment and/or Memorandum shall affect,
anyway, this Amendment or the Memorandum or any of the rights or obligations of
the Parties foreseen in this Amendment and in the Memorandum, unless in the
strict terms of said tolerance or waiver granted.
4.11 Severability. If any of the provisions of this Amendment is considered
null, voidable, invalid or inoperative, no other provision of this Amendment
shall be affected as a result of it and, therefore, the remaining provisions of
this Amendment shall remain in full force and effect as if said null, voidable,
invalid or inoperative provision was not contained herein.
4.12 Life. This Amendment shall be in force, automatically and irrespective of
any additional formality, on the date on which the incorporation of OPP Produtos
Petroquimicos S.A. and 52114 Participacoes S.A. by the COMPANY is approved at a
Special General Meeting of Shareholders of the COMPANY held for this purpose.
4.12.1. The Advisers of the COMPANY shall receive the information report about
the passive contingencies and active superveniences and respective realizations
mentioned in Clause 8.1.2 of the "Protocol and Justification of the Operation of
Incorporation of OPP Produtos Petroquimicos S.A. by Copene - Petroquimica do
Nordeste S.A." to be submitted to decision of the Special General Meeting
mentioned in the above Clause 4.12, it being right that the Advisors shall have,
individually, the right to request and receive, from the COMPANY, information
about the defense of and/or questions about any prospective Losses (as defined
in said Protocol), as well as documentation relating the Losses incurred and the
respective indemnification.
And by being thus fair and agreed, the Parties and the Consenting Parties sign
this Amendment in 05 (five) counterparts of same text and form, before the
undersigned witnesses.
Rio de Janeiro, July 26, 2002.
ODEBRECHT PETROBRAS QUIMICA S.A. - PETROQUISA
(signed: illegible) (signed: illegible)
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
(signed: illegible) (signed: illegible)
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Brunnet
PETROQUIMICA DA BAHIA S.A. NORDESTE QUIMICA S.A. - NORQUISA
(signed: illegible) (signed: illegible)
Andre Philippe ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Junior
(signed: illegible) (signed: illegible)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
COPENE - PETROQUIMICA DO NORDESTE S.A. PETROLEO BRASILEIRO S.A.
(signed: illegible) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de Sa
(signed: illegible)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Witnesses:
1. (signed: illegible) 2. (signed: illegible)
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SALUSTINO Name: KATIA (illegible)
ID Card (RG): 1865128-30 ID Card (RG): 07175939-3
