Exhibit 3.01
SHAREHOLDERS AGREEMENT
By this private deed:
1) ODEBRECHT QUIMICA S/A, a stock company with head office at Xx. xxx Xxxxxx
Xxxxxx xx 0000, 0x xxxxx, Xxxx 3, in the City of Sao Paulo, State of Sao
Paulo, enrolled in the National Roll of Corporate Taxpayers under #
57.015.018/0001-84 ("Odebrecht"), herein represented by its undersigned
legal representatives (Odebrecht and those companies directly or indirectly
controlling or controlled by or under common control with Odebrecht
hereinafter jointly referred to as "Odebrecht Group"); and
2) PETROQUIMICA DA BAHIA S/A, a stock company with head office at Xxx Xxxxxx
Xxxxxx xx 00, 00 andar (parte), in the City of Salvador, State of Bahia,
enrolled in the National Roll of Corporate Taxpayers under #
13.943.667/0001-70 ("PQBA"), herein represented by its undersigned legal
representatives (PQBA and those companies directly or indirectly
controlling or controlled by or under common control with PQBA hereinafter
jointly referred to as "PQBA Group");
all of them referred to jointly as Parties and severally as Party.
WHEREAS:
A) on November, 1999, the Groups "Odebrecht", "PQBA" and "Economico" signed a
Memorandum of Understandings (as subsequently amended) aiming at conveying,
by means of controlled companies, certain petrochemical assets ("Northeast
Assets - Memorandum") located in the Petrochemical Pole of Camacari and, as
a result, three (03) Auctions were carried out to sell said assets;
B) in the 1st Auction, on December 14th, 2000, the only proposal that was
submitted did not meet the Binding Price, as set out in the Memorandum of
Understandings; in the 2nd Auction, dated March 27th, 2001, despite the
substantial reduction of price in comparison to the 1st Auction, no
proposal was submitted at all;
C) the absence of proposals in the 2nd Auction caused Odebrecht Group and PQBA
Group, supported by certain financial institutions, to join in order to
restructure the Petrochemical Pole of Camacari, beginning with the
corporate uncrossing of the involved companies and the second-generation
companies integration to Copene - Petroquimica do Nordeste S/A ("Corporate
Restructuring");
D) on July 25th, 2001, the Central Bank of Brazil, acting as liquidator of
Banco Economico, carried out the auction of the Economico S/A
Empreendimentos assets, whose winner was a module of Odebrecht Group named
Nova Camacari Participacoes S/A;
E) after the financial settlement for the Auction, both the (i) uncrossing of
the shares issued by Norquisa and indirectly held by Polialden - which
shares started being held by Odebrecht Group - and the (ii) conveyance to
Copene of all the shares issued by Nova Camacari took place;
F) PQBA Group holds directly or indirectly 92,808,018 common shares and
2,980,408 preferred shares issued by Norquisa, fully subscribed and paid up
and free from any burdens, liens or encumbrances whatsoever, excepting
those listed in the "Sixth Amendment and Deed of Consolidation to the
Agreement of Shareholders of Nordeste Quimica S/A - Norquisa", dated
01/10/1995 ("Sixth Amendment") and, in its turn, Odebrecht Group holds
directly or indirectly 229,339,518 common shares and 7,340,707 preferred
shares issued by Norquisa, fully subscribed and paid up and free from any
burdens, liens or encumbrances whatsoever, excepting those listed in said
Sixth Amendment;
G) the Parties do hereby decide to execute this Agreement, whereby they rule
their relationships as direct or indirect shareholders of Copene, and this
document is to take into account the Corporate Restructuring steps, also
running upon the Copene management and the preferred right as to the
purchase of shares issued by Copene and/or Norquisa;
NOW, THEREFORE, both parties sign this Agreement to be governed by the following
clauses and conditions:
1 - Definitions:
1.1 In addition to other terms defined hereunder, the following ones will have
the meanings set out below, when written in capital letters:
a) "Shareholder" means any of the Parties hereto as well as their successors,
affiliates or fellow companies that may have the rights and duties hereunder
transferred to it.
b) "Shares" means those shares issued by Norquisa at this time directly or
indirectly held by each Party. For the purposes hereof, "Shares" shall include
any and all shares that may be added to such Shares issued by Norquisa in case
of bonus, split or combination. It is here and now agreed and understood that,
in case Norquisa is wound up, only those shares issued by Copene and received by
the Shareholders as a result of their current equity in Norquisa will be taken
into account for the purposes hereof, and any shares issued by Norquisa or
Copene and received in view of the Corporate Restructuring foreseen for the
Petrochemical Pole integration shall not be reckoned.
c) "Affiliate" or "Affiliates" means, regarding any Party, any individual or
corporation resident or headquartered in Brazil or abroad, which (i) is directly
or indirectly controlled by such Party; (ii) directly or indirectly controls
such Party; or (iii) is directly or indirectly controlled by any person directly
or indirectly controlling such Party.
2 - Subject Matter:
2.1 The subject matter hereof is to rule the relationships between the Parties
as direct or indirect shareholders of Copene and to run upon the preferred right
as to the Shares as well as the Copene management and control, whether directly
or by means of Norquisa.
3 - Preferred Right:
3.1 By this private deed and according to law, PQBA grants to Odebrecht the
preferred right to purchase common shares out of the set of Shares held by PQBA,
and therefore such common shares may not be sold, assigned, transferred, granted
to another company's capital or otherwise, whether directly or indirectly,
conveyed, promised to convey or encumbered, given in beneficial ownership or
trust (all these acts hereinafter referred to as "Conveyance"), without having
been first offered to Odebrecht, on even terms, according to this clause.
3.2 In like manner, Odebrecht grants to PQBA the preferred right to purchase
common shares held by Odebrecht, exactly as provided by clause 3.1 above. The
preferred right herein granted by Odebrecht will be valid until the date in
which Odebrecht Group shall transfer to Copene all the petrochemical assets
directly or indirectly held by Odebrecht, as listed in Exhibit 3.2 attached
hereto, and after such date the preferred right herein granted by Odebrecht to
PQBA shall be revoked.
3.3 Such legal acts or things described in clauses 3.1 and 3.2 above, when
performed by any of the Parties, their affiliates and/or successors, without the
previous written consent of the other Party pursuant to this clause 3, will be
subject to annulment, without prejudice to any other penalties provided by law,
in addition to indemnity for losses and damages and loss of profits.
3.4 If any Shareholder wishes to convey all or any part of its common shares
(the "Offeror"), it must inform its intention to the other Shareholder signing
this Agreement (the "Offeree"), in writing, mentioning the class, if any, and
the quantity of Shares it intends to convey, as well as the conditions for such
operation, including price, which must be paid invariably in domestic currency
(the denomination thereof in another currency being allowed, to be converted the
day the offer is accepted, according to the law in force), payment conditions,
interest rate, the name of the person interested in purchasing (showing its
final controller) and any other information that might be relevant to the
concrete case, so as the Offeree may exert its preferred right according to
clause 3.1 or 3.2 below, as the case may be.
3.5 The Offeree will enjoy preferred right to purchase the offered Shares for
the same price and in the same payment conditions as those offered by the
interested third party, also adhering to what follows:
(a) the exertion of the preferred right shall take place within a term of
thirty (30) days from the date the notice referred to under clause 3.4 is
received and will be valid only when encompassing all and nothing less than
all the offered Shares; such preferred right shall be exerted upon the
delivery of a written notice by the interested Offeree to the Offeror;
(b) once manifested the exertion of the preferred right, the respective
purchase will be completed within thirty (30) days after the deadline set
forth in subsection (a) above.
3.6 If said term of thirty (30) days referred to under clause 3.5(a) elapses and
the Offeree has not manifested its interest, or said term of thirty (30) days
referred to under clause 3.5(b) elapses and the offered Shares have not been
purchased by the Offeree, the Offeror will be free to convey such Shares for the
same price and conditions as those firstly offered by the interested third
party, within the next succeeding thirty (30) days. After such term is elapsed,
or in case the Conveyance conditions and/or price are different, the offer shall
be renewed.
3.7 In case the common shares held by one of the Shareholders are pledged, the
relevant offer for the conveyance of such Shares will be deemed duly made to the
other Shareholder if no legal constriction is designed within the next
succeeding one hundred and twenty (120) days from the date the pledge is
effected, or within up to five (05) days before the date the respective auction
takes place, whichever is the longest. In this case, "offer price" means the
updated worth of the common shares and, should the other Shareholder be
interested in exerting its preferred right, he will be invested with full powers
to apply for those pledged common shares to be substituted by money, according
to the provisions and period of time set out in article 668 of the Civil
Procedure Code.
3.8 The provisions of clause 3.9 below being complied with, if Odebrecht wishes
to convey its Shares, whether directly or indirectly, in full or in part, PQBA
will be entitled (but not required) to convey its Shares for the same pro rata
price and in the same conditions, together with those Shares offered by
Odebrecht ("Joint Sale"), it being understood that the number of Shares to be
included by PQBA in the Joint Sale must represent a percentage of the total
number of Shares held by it equal to or lower than the percentage represented by
the number of Shares offered by Odebrecht as regards to the total number of
Shares held by it. To such effect, PQBA must inform Odebrecht in writing about
its intention to exert the Joint Sale right referred to hereunder within a term
of thirty (30) days from the date the notice referred to under clause 3.4 is
received. If the interested third party does not wish to purchase all or any
part of the Shares that have been added to those firstly offered Shares as a
result of the Joint Sale referred to hereunder, the quantity of Shares to be
conveyed to the interested third party by Odebrecht and PQBA must be reduced
accordingly.
3.9 Without prejudice to the aforementioned provisions, should Odebrecht, at any
time, whether directly or indirectly, in one or more operations, convey Shares
meaning loss of direct or indirect control of Norquisa, conjointly with PQBA
Group, PQBA will be entitled (but not required) to convey all its Shares for the
same average unit price per Share and in the same conditions, together with
those Shares conveyed by Odebrecht. To such effect, PQBA must inform Odebrecht
in writing about its intention to exert the Joint Sale right referred to
hereunder within a term of thirty (30) days from the date the notice referred to
under clause 3.4 is received. In case the interested third party does not wish
to purchase all or any part of the Shares that have been added to those Shares
firstly offered by Odebrecht as a result of the Joint Sale referred to
hereunder, the conveyance of the Shares may not take place.
3.10 Odebrecht does hereby irrevocably and unchangeably grant and guarantee to
PQBA Group the right (but not the obligation) to joint sale (tag along) the
whole equity held by PQBA Group in the corporate capital of Copene, in case of
sale or transfer, under any concept whatsoever, to third parties, of the direct
or indirect control on Copene, after the completion of the Corporate
Restructuring foreseen for the integration of the Petrochemical Pole of
Camacari, in the same conditions as those offered by the purchasing third party
to the shareholders controlling Copene.
4 - Vote Agreements:
4.1 Both Parties do hereby commit themselves to exert their voting rights as to
Norquisa and/or Copene according to the provisions of this clause 4, as well as
to advise their representatives in the Administration Board or in the Board of
Directors of those companies to do so.
4.2 Both Parties commit themselves to cause all steps of the Corporate
Restructuring to be fulfilled, exerting their voting rights always aiming at the
faithful compliance with and regular course of the Corporate Restructuring
process, including:
(i) transfer of all the petrochemical assets directly or indirectly held
by Odebrecht Quimica to Copene;
(ii) option for PQBA to be able to transfer its second-generation assets,
whether directly or indirectly held, to Copene;
(iii) migration to Copene of the minor shareholders of the
second-generation companies directly or indirectly controlled by PQBA
and Odebrecht Quimica S/A.
4.3 Odebrecht Group shall appoint, whether directly or indirectly, the majority
of the Administration Board members of Norquisa and the majority of the
Administration Board members of Copene, and PQBA is entitled to appoint at least
one member of the Administration Board of Norquisa and at least one member of
the Administration Board of Copene. It is further agreed that Odebrecht Group
shall appoint, whether directly or indirectly, all the members of the Board of
Directors of Norquisa and Copene, it being understood that, should the
Administration Board of Norquisa be wound up, PQBA Group shall be entitled to
appoint at least one member for the Board of Directors of Norquisa.
4.4 Both Parties do hereby commit themselves to exert their voting rights as to
Copene in order to make it feasible the transfer of the petrochemical assets
directly or indirectly held by Odebrecht Quimica to Copene, upon any modality of
conveyance permitted by the law, also ensuring to PQBA the chance to transfer
its second-generation petrochemical assets, whether directly or indirectly held,
in the same conditions and at the same criteria as those applied to the transfer
of Odebrecht Quimica assets.
4.5 Both Parties do hereby commit themselves to exert their voting rights as to
Copene in order to promote the migration to its corporate capital of the minor
shareholders of the second-generation companies controlled by Copene, and also
promise to vote for the second-generation companies integration to Copene as
soon as such migration takes place.
5 - Representations and Guarantees:
5.1 Each Party hereby represents and guarantees to the other Party that:
(a) it is duly organized and validly existing under the laws of its
jurisdiction, enjoys full power and authority, as the case may be, to
execute this Agreement and undertake the obligations contained herein;
the execution of this Agreement and the compliance with the
obligations hereunder were duly authorized by the respective managing
boards of each Party;
(b) excepting this instrument, it is not a party to or bound by any other
agreement whatsoever, regarding the ownership, transfer or liens on
its Shares conflicting the provisions hereof, aside from the Agreement
of Shareholders of Nordeste Quimica S/A - Norquisa;
(c) it is the rightful owner of its Shares, which Shares are free and
clear from any burdens, debts, doubts and disputes whatsoever, in
respect of third parties;
(d) this Agreement is a legal, valid, effective and binding obligation
that the respective Party may be required to comply with pursuant to
the provisions set forth herein.
6 - Miscellaneous:
6.1 The Party failing to comply with any provisions hereof or stating any
faithless representations or guarantees will be deemed a defaulter and shall
bear every burden and consequence from such default, being subject to payment
for losses and damages it may give rise to.
6.2 Whenever this Agreement requires or allows any consent, approval,
notification or request from one Party to the other Party, such consent,
approval, notification or request will be deemed delivered and received if: (i)
delivered personally or by telegram; (ii) sent by ordinary mail, upon prepaid,
certified or registered postage; in any event, provided it is sent to such
persons at such addresses listed below for each Party:
If to Odebrecht:
Av. das Nacoes Unidas no 4.777, 30 andar
Sao Paulo, Sao Paulo
Care of: Board of Directors
If to PQBA:
Xxxxx Xxx X, 0x xxxxx, Xxxxxx
Xxx xx Xxxxxxx, XX
Care of: Xxx. Xxxxx Xxxxxxx Xxxxx
6.4 The failure by any of the Parties in exerting any right set forth hereunder
shall be construed separately and may not be deemed as waiver by any of the
Parties or novation as to any obligation contained herein, which failure shall
be deemed a mere act of gratuity.
6.5 This Agreement is executed as an irrevocable and unchangeable deed, binds
the Parties and their successors whomsoever, and may be amended only by means of
written agreement signed by both Parties.
6.6 Any default to or noncompliance with any obligations hereunder will grant
the affected Party the right to demand in court the compliance with such
obligation, upon specific enforcement, since this is an extrajudicial document
valid to commence an execution process, for all purposes and effects of articles
461, 632, 639 et. seq. of the Civil Procedure Code.
6.7 The Parties hereby commit themselves to consult each other whenever there is
any need to disclose the contents hereof to third parties.
6.8 This Agreement will be governed by, construed under and subject to the laws
of Brazil; in case of any noncompliance with the obligations undertaken
hereunder, the Parties hereby elect the Court of the County of the Capital of
the State of Bahia to settle any disputes or controversies arising hereof,
excluding any other one, the most privileged it might be.
And, being thus fair and agreed, the Parties cause this Agreement to be signed
in two (02) copies of equal form and substance, and for a single effect, in the
presence of the two undersigned witnesses.
Salvador, July 27th, 2001.
[sign.](illegible) ODEBRECHT QUIMICA S/A
[sign.](illegible) PETROQUIMICA DA BAHIA S/A
Witnesses:
1. [signature] 2. [signature]
Name: (illegible) Name: (illegible)
Taxpayer Card: 000.000.000-00 Taxpayer Card: 000.000.000-00
