Contract
Exhibit 4.10
Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “[*]”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
AMENDMENT NO. 5 TO THE PETROCHEMICAL NAPHTHA PURCHASE AGREEMENT ENTERED INTO BY, ON THE ONE PART, PETRÓLEO BRASILEIRO S.A. – PETROBRAS, AND, ON THE OTHER PART, BRASKEM S.A., AS FOLLOWS:
PETRÓLEO BRASILEIRO S.A. — PETROBRAS, a mixed-capital company, with its principal place of business at Avenida República do Xxxxx, 00, in the city of Rio de Janeiro, State of Rio de Janeiro, enrolled in the National Register of Legal Entities under No. 33.000.167/0001-01, hereinafter referred to as PETROBRAS, herein represented by its Executive Supply, Marketing and Sale Manager, Xx. Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx, and
BRASKEM S.A., a company with its principal place of business at Xxx Xxxxx Xxxxxxxx, 000, Butantã, São Paulo - SP, enrolled in the National Register of Legal Entities under No. 42.150.391/0001-70, hereinafter referred to as BRASKEM, herein represented by its two signatories indicated at the end, legal successor of BRASKEM QPAR S.A.
PETROBRAS and BRASKEM, are also referred to, together, as PARTIES and individually as PARTY.
WHEREAS:
· On May 17, 2006, PETROBRAS and Petroquímica União S.A. (“PQU”) entered into the Naphtha Purchase Agreement (“Agreement”), in force until December 31, 2010, and with the possibility of tacit renewal for an additional term of five (5) years, provided that neither PARTY states, in writing, within at least six (6) months prior to the expiration of the Agreement, its intention not to extend such Agreement.
· PQU, after the corporate restructuring that took place, had its name changed to QUATTOR Químicos Básicos S.A., which was merged into QUATTOR Química S.A., into QUATTOR Participações S.A., and later into BRASKEM QPAR S.A. Finally, BRASKEM S.A. (“BRASKEM”) took over BRASKEM QPAR S.A., assuming all of its rights and obligations.
· On February 29, 2008, PARTIES executed the FIRST AMENDMENT to the Naphtha Purchase Agreement to introduce changes in Exhibit II – Price Calculation Formula and Term of Validity, and in Exhibit IV – Glossary;
· On October 22, 2010, PARTIES entered into the SECOND AMENDMENT to the Naphtha Purchase Agreement to change Clause Two – Quantity, Clause Seven – Conditions of Invoicing and Payment, Clause Eight – Term, and Exhibit II - Price Calculation Formula and Term of Validity, as well as to include Exhibit V – Price Calculation. Thus, the term of the agreement was altered to establish its effectiveness until February 28, 2014, which term could be tacitly renewed for an equal period of other five (5) years, if neither of the PARTIESstates otherwise, in writing, within at least one (1) year prior to the expiration of the term of effectiveness.
· On February 18, 2013, PETROBRAS sent a mail to BRASKEM where it stated that it was not interested in the tacit renewal of the Agreement, the effectiveness of which was set to end on February 28, 2014;
· On February 28, 2014, PARTIES executed Amendment No. 3 to the Agreement, to be in force for six (6) months as of March 01, 2014, in order to allow the continuation of the negotiations for the execution of a new Naphtha Purchase Agreement;
· As, until August 29, 2014, PARTIES had not been successful in negotiating a new petrochemical naphtha purchase agreement, they executed Amendment No. 4 to the Agreement, to be in force for six (6) months as of September 01, 2014, in order to allow for the continuation of said negotiation;
· During the last six (6) month term aforementioned there has not been an agreement regarding the New Price for a long term agreement for the supply of Petrochemical Naphtha;
· PARTIES are now negotiating in order to find a solution that aggregates the interests so far presented by both companies;
· PARTIES deem advisable to further amend the Agreement to extend its effectiveness for an additional term of six (6) months – as of March 1, 2015 – during which period said negotiations shall be completed;
· PARTIES shall use their best efforts to find a long-term new structural solution that allows the execution of a new naphtha supply agreement that, by maintaining the PARTIES’ interests, bring competition to the Brazilian chemical and petrochemical industry;
NOW THEREFORE, the Parties have decided to enter into Amendment No. 5 to the Agreement under the following clauses and conditions:
CLAUSE ONE – OBJECT
1.1 – The object of this Amendment No. 5 is to extend the term of effectiveness of the Agreement for six (6) months, as of March 1, 2015, under Clause Two of this Amendment No. 5.
CLAUSE TWO — AMENDMENT TO THE AGREEMENT
2.1 – The writing of item 8.1 of Clause Eight of the Agreement shall henceforth read as follows:
"CLAUSE EIGHT — TERM
8.1 – This agreement shall be in force as of the date of its execution, with effects from May 17, 2006 until August 31, 2015.”
CLAUSE THREE — EFFECTIVENESS
3.1 – This Amendment No. 5 shall be in force as of the date of its execution.
CLAUSE FOUR — GENERAL PROVISIONS
4.1 – PARTIES agree that, during the additional period of six (6) months established in item 1.1 above, the price to be charged by PARTIES for the purpose of invoicing will be the price defined in Clause Six of the Agreement.
4.2 – PARTIES shall use their best efforts to avoid interruption in the supply during the period referred to in item 4.1 above. Without prejudice, PARTIES agree that, exceptionally in March 2015, any remaining quantity not delivered or not received shall be automatically cancelled without costs or penalties to PARTIES.
4.3 – PARTIES further agree that, if the negotiations for the execution of a new naphtha purchase agreement between PARTIES are successful, the new price defined therein (“New Price”) shall be applied as of the base date of March 1, 2015.
4.4 – PARTIES shall verify the existence of any difference between the price charged during the additional period of six (6) months established in item 1.1 above and the New Price. The difference found, if in favor of PETROBRAS, shall be reimbursed by BRASKEM, and the reverse procedure must be observed if the difference found is in favor of BRASKEM. Such values shall be calculated and reimbursed to PARTIES within at most sixty (60) days from the closing of this Amendment No. 5.
4.5 – Occasional facts from third parties that impact the New Price, such as the creation, extinction or modification of taxes and rates now in force and applicable to the object of the Agreement, shall not be considered in the reimbursement set forth in item 4.4 above.
4.6 – PARTIES shall use their best efforts to agree upon the New Price and the term of the new petrochemical naphtha purchase agreement within the term of this Amendment No. 5. If PARTIES exceptionally do not agree upon the New Price within the term of this Amendment No. 5, BRASKEM shall reimburse PETROBRAS for the amount of the difference between the price formula described in items II.1 and II.2 of Exhibit II, set forth in item 3.4 of Amendment No. 2 to Agreement during the additional period of six (6) months defined in item 1.1 above, and the price corresponding to the [*] average quotation of Physical Naphtha in the Northwestern European market (NWE CIF ARA), [*], which PARTIES expressly recognize to be an exceptional emergence solution to be effective only during the term of this Amendment No. 5, where,
ARA = [*] average quotation of Physical Naphtha in the Northwestern European market (NWE CIF ARA), published by Xxxxx’x in US$/t, taking into consideration the [*] average of the last [*] before the supply [*].
4.6.1 – Such amounts shall be calculated and reimbursed to PETROBRAS within at most sixty (60) days from the closing of this Amendment No. 5. The reverse procedure must be adopted, with reimbursement by PETROBRAS to BRASKEM, if the difference found in accordance with the criteria above is in favor of BRASKEM. PARTIES undertake to negotiate in good faith and use all efforts to agree on the New Price, in order to avoid the application of the offsetting system set forth in this Clause.
4.7 – From the date of the execution of this Amendment No. 5 until the date of the [*], Parties shall use their best efforts to jointly obtain from [*], through the relevant legal instrument, the acknowledgement that [*] is not levied on the Petrochemical Naphtha imported by PETROBRAS to be supplied to BRASKEM, based on [*].
4.8. If, after the term of Clause 4.7 below is expired, Parties have not been successful in obtaining from [*] the acknowledgement that [*] is not levied on the import operations mentioned above, despite the will of Parties, this Agreement, as altered by its Amendments, including this Amendment No. 3, shall be [*] until a solution for the [*] issue is found, recovering its legal effectiveness as soon as this issue is solved and maintaining August 31, 2015 as the final term of effectiveness of the Agreement.
4.8.1 – In case of the [*] provided for in item 4.8, the reimbursement system set forth in items 4.6 and 4.6.1 shall be applied to the period of actual supply from March 01, 2015 to August 31, 2015.
4.8.2 – In case of [*] of the Amendment, PARTIES agree that, exceptionally regarding the month when the supply [*] and the following month, any remaining quantity not delivered or not received, calculated in accordance with item 2.7 of the Agreement, even if higher [*] shall be automatically canceled without costs or penalties to PARTIES.
4.9 – This Amendment No. 5 does not imply any novation of a contractually established obligation, and the reimbursement obligation set forth in Clause 4.8 of Amendment No. 4 is maintained in the exact terms therein provided, from September 01, 2014 to February 28, 2015; in addition to that, all the remaining terms and conditions of the Agreement are ratified.
IN WITNESS WHEREOF, PARTIES have executed this Amendment No. 5 in two (2) counterparts of equal contents, in the presence of the witnesses below.
Rio de Janeiro, February 27, 2015.
[signature]
XXXXXXXXX XXXXXX XXXXXX XXXXXX
Petróleo Brasileiro
S.A. – PETROBRAS
[signature]
BRASKEM S.A.
[signature]
BRASKEM S.A.
WITNESSES:
[signature]
Name: Xxxx de Xx Xxxxxxx Junior
Identity Card: 04701561-5
CPF: 000.000.000-00
[signature]
Name: Hardi Xxxx Xxxxxx
Identity Card: 102022297-1
CPF: 000.000.000-00
