EX-4.09 Memorandum of Understanding



 





Exhibit 4.09




MEMORANDUM OF UNDERSTANDING




PETRÓLEO BRASILEIRO S.A.  — PETROBRAS, a mixed-ownership public company governed by
Brazilian Law, with head offices at Avenida República do Chile No 65, City of Rio de
Janeiro, State of Rio de Janeiro, registered with the Treasury Ministry on the National
Corporate Tax-Payers’ Roll under CNPJ/MF No 33,000.167/0001-01 (hereinafter called
“Petrobras”);



BRASKEM S.A., a public company governed by Brazilian Law, with head offices at Rua Eteno
No 1561, Camaçari Petrochemical Complex, City of Camaçari, State of Bahia, registered
with the Treasury Ministry on the National Corporate Tax-Payers’ Roll under CNPJ/MF No
42.150.391/0001-70 (hereinafter called “Braskem”);



Together called the “Parties”; and any of them indiscriminately the “Party”, and
as the Assenting Intervener,



PETROBRAS QUÍMICA S.A.  — PETROQUISA, a public company governed by Brazilian Law, with
head offices at Avenida República do Chile, No 65, 9th floor, part, City of Rio de
Janeiro, State of Rio de Janeiro, registered with the Treasury Ministry on the National
Corporate Tax-Payers’ Roll under CNPJ/MF No 33.795.055/0001-94, a wholly-owned
subsidiary of Petrobras (hereinafter called “Petroquisa”);



WHEREAS:



(i) On this date, the Parties sign an Investment Agreement (“Investment Agreement”)
with Ultrapar Participações S.A. ("Ultrapar”), encompassing the
acquisition of certain Distribution Assets and Petrochemical Assets belonging to the
Controlling Shareholders of the Ipiranga Group (“Ipiranga Group”) (“Global
Purchase”);



(ii) After the completion of the Global Purchase, Ultrapar, with the participation of
the Parties, will implement a corporate restructuring process of the Ipiranga Group, in
order to separate the Distribution Assets from the Petrochemical Assets (“Separation
of the Assets”);




 









 








(iii) After the Separation of the Assets, Braskem and Petrobras will hold the Petrochemical Assets
in a proportion of 60% and 40% respectively, with Petrobras retaining the Distribution Assets
located in North, Northeast and Center-West Brazil, while Ultrapar will retain the Distribution
Assets located in South and Southeast Brazil;



(iv) The Petrochemical Assets of the Ipiranga Group (“Petrochemical
Assets”) consist mainly of Ipiranga Química S.A., the current name of Ipiranga
Comercial Química S.A.
(“ICQ”) and its direct and indirect subsidiaries, notably
Ipíranga Petroquímica S.A. (“IPQ”), as well as the stake held thereby in the equity
capital of Copesul — Companhia Petroquímica do Sul (“Copesul”);



(v) The acquisition of the Petrochemical Assets will be conducted in two phases, namely: (1) the
first phase will take place between the Global Purchase and the Separation of the Assets, when the
Petrochemical Assets will be held formally by Ultrapar, administered by Braskem and Petrobras, in
the proportions stated in Whereas Paragraph (iii) above; and (2) the second phase will begin after
the Separation of the Assets, when Braskem will hold formal corporate control of the Petrochemical
Assets, which will continue to be administered by Braskem and Petrobras in the proportions stated
in Whereas Paragraph (iii) above;



(vi) In order to regulate the relationship between the Parties and Ultrapar during the first phase
of the Acquisition of the Petrochemical Assets, specifically with regard to the management
thereof, the Parties hereby sign a Shareholders’ Agreement with Ultrapar (“Ultrapar
Shareholders’ Agreement”), on this date;



(vii) As Parties hereby wish to establish among themselves the general terms and conditions that
will regulate the relationship among the Parties in terms of the acquisition, as described in this
Memorandum, and the management of the Petrochemical Assets acquired from the Ipiranga Group;



The Parties have fully and fairly agreed to sign this Memorandum of Understanding
(“Memorandum”), which will be ruled by the following terms and conditions:




 









 








I. PURPOSE




1.1 Through this Memorandum, the Parties establish among themselves the general terms and
conditions under which they intend to acquire together the Petrochemical Assets, as set forth in
the terms of the Investment Agreement, whereby, considered such as assets as a whole, they will
belong to Braskem and Petrobras, apportioned 60% to Braskem and 40% to Petrobras (“Acquisition
of the Petrochemical Assets”), as well as making provision for the reciprocal rights and
obligations arising from the relationship among the Parties as Shareholders.



1.2 It is expressly agreed among the Parties that the rights and obligations of Petrobras and/or of
Petroquisa as set forth in this Memorandum, and all the provisions hereof (specifically the rules
in Clause V), will be applicable to Copesul only after the Separation of the Assets and once the
Parties have acquired the shares held by the Copesul Minority Shareholders, whereby Braskem will
hold direct or indirect formal control of Copesul, through either a public offering and/or going
private.



1.2.1 Despite the provisions in Clause 1.2 above, the Parties hereby agree to guide the votes cast
through the Copesul shares held by IPQ through to the Separation of the Assets and the acquisition
by Braskem of formal control of Copesul as set forth in Clauses 5.5 and 5.6 below, whenever the
matters mentioned therein are submitted to the respective deliberative entities of Copesul.



II. ACQUISITION OF THE PETROCHEMICAL ASSETS




2.1 The Parties hereby agree that the provisions in this Memorandum are subject to the
implementation of the Investment Agreement, as set forth therein, particularly with regard to the
effective Global Purchase.



2.2 The acquisition of the Petrochemical Assets will be conducted in the proportions stated in
item 1.1. above, through acquisition of 100% of the shares issued by ICQ, free and unencumbered
of any burden or onus, with all the investments, businesses and other assets held either directly
or indirect by ICQ, pursuant to the other terms and conditions set forth in the Investment
Agreement.



 









 





2.3 All and any other payments, and other rights and obligations set forth in the Investment
Agreement as is, will be complied with jointly by Braskem and Petrobras, in the same proportions as
stated in item 1.1.



2.4. Should either of the Parties, Petrobras or Braskem, fail to meet a pecuniary obligation
assigned thereto through the provisions in item 2.3. above (“Defaulting Party”), the other
Party (“Compliant Party”) may comply with such obligation on behalf of the Defaulting
Party, on expiry of the of the procedures and deadlines set forth in the Investment Agreement, with
the Compliant Party having the right, at its sole discretion, to (a) subrogate all rights and
obligations under full right of law assigned to the Defaulting Party under the Investment
Agreement, with regard to the Petrochemical Assets, or (b) to collect through negotiation or
execution, the amounts expended due to the failure to meet the pecuniary obligation by the
Defaulting Party, in addition to a fine of 10% charged on the principal amount, in addition to a
fine, between the date of the default and the date of the respective payment, with interest at the
same rate as the Interbank Deposit Certificate (CDI).



2.4.1 After the application of the provision set forth in item 2.4, should the percentage stake
held by Petrobras in the Petrochemical Assets be lower than that held by Braskem, all the terms and
conditions of this Memorandum will remain in effect. If, to the contrary the percentage stake held
by Petrobras in the Petrochemical Assets exceeds that held by Braskem, Petrobras will take over all
the rights and obligations of Braskem as set forth in this Memorandum, while Braskem will similarly
accept all the rights and obligations of Petrobras in this Memorandum.



III. REPRESENTATIVES




3.1. For the relations between Braskem and Petrobras arising from this Memorandum, Braskem will be
represented by its CEO or by whomsoever it indicates in writing, while Petrobras will be
represented, as applicable, by the Executive Procurement – Petrochemicals and Fertilizer Manager,
or whoever may be indicated thereby in writing (“Representatives”). The Parties may alter
their Representatives at any time through written notification forwarded to the other Party. All
these written communications will be conducted as set forth in Clause XII below.




 









 








1V. FUTURE STEPS




4.1. After the Acquisition of the Petrochemical Assets, the Parties hereby agree to analyze and
implement as quickly as possible the measures required to optimize the development of synergies
arising from the Acquisition of the Petrochemical Assets, in terms of their own Petrochemical
Assets.



V. RULES FOR DOING BUSINESS TOGETHER




5.1. Under the conditions set forth in the Investment Agreement, once the Global Purchase Process
has begun, Petrobras and Braskem will be bound to comply with the following rules for doing
business together for the management of the Petrochemical Companies (as defined below):




(a) the stakes held by Petrobras and Braskem in the management of the companies constituting
the Petrochemical Assets, namely ICQ and IPQ (“Petrochemical Companies”), will be
that established in item 1.1. above, with Braskem appointing the majority of the Officers
of the Petrochemical Companies under any hypothesis whatsoever, including Copesul, as set
forth in item 1.2 above.




(b) the General Meetings and the Board Meetings of any of the Petrochemical Companies will
be preceded by prior meetings at which, pursuant to the rules set forth below for decisions
taken by the General Meeting and the Board Meeting, Petrobras and Braskem will decide on
the votes to be cast by the Board Members appointed by each of them, or by themselves, as
the shareholders of ICQ or of ICQ as a shareholder of IPQ;




(c) the same procedure as set forth in letter (b) above will necessarily be followed for
the Executive Board Meetings of the Petrochemical Companies that do not have a Board.




(d) either of the Parties may convene the prior meetings, which must be held 5 (five) days
prior to the respective dates, or a shorter period of time through common agreement between
the Parties.



 









 





5.2. After the Global Purchase, the rules for doing business together established in this
Memorandum will be upheld, with Braskem being bound to cast its vote to elect the Officers
appointed by Petrobras, in compliance with the proportions mentioned in item 1.1.



5.3. The Parties expressly acknowledge that, after the Separation of the Assets and the
acquisition by the Parties of the shares held by the Copesul Minority Shareholders, through either
the public offering or going private, the current Copesul Shareholders’ Agreement signed by IPQ and
Braskem will expire, with Copesul becoming a subsidiary of Braskem, managed by the Parties as set
forth in this Memorandum.



5.4. Corporate transactions – including but not limited to spin-offs, take-overs, mergers,
divestment of assets or other equity, shut-downs of companies or reductions in capital – conducted
under the aegis of the Investment Agreement and related to the integration of the assets in
Copesul, must be agreed in advance between the Parties in order to ensure the best possible
corporate and tax structuring for both Parties, with favorable votes being cast by the Parties
seated on the deliberative entities of the Petrochemical Companies.



5.5. Decisions taken by the General Meeting: any of the matters listed below may be
approved at a General Meeting of any of the Petrochemical Companies only if supported by a
favorable vote cast by Petrobras at the prior meeting:




(a) Modification of the rights conferred on the shares issued by any of the
Petrochemical Companies with negative effects on the value of the shares issued by
any of the above-mentioned companies held by Petrobras;




(b) Alteration, expansion or reduction of the registered corporate purpose of any of
the Petrochemical Companies;




(c) Increase in the number of Board Members of any of the Petrochemical Companies;




(d) Reduction in the number of Board Members of any of the Petrochemical Companies
elected at the recommendation of Petrobras;



 









 






(e) increase in the equity capital of any of the Petrochemical Companies through
paying in goods or rights, unless such goods or rights are related to the corporate
purpose of any of the above-mentioned Companies, and their assessment is conducted
by a first-line investment bank or by a first-line independent audit firm;




(f) merger, spin-off or take-over of any of the Petrochemical Companies by some
other company, or among themselves or any other company, affecting any of the
Petrochemical Companies and resulting in a dilution of the stakes held by Petrobras
in any of the Petrochemical Companies;




(g) dissolution or liquidation of any of the Petrochemical Companies.




(h) Issue of stock-convertible debentures by any of the Petrochemical Companies;




(j) introduction of preferred shares or even an existing class of preferred shares
without maintaining the same proportion with the other classes of preferred shares;




(j) alteration in the preferences, advantages and redemption and amortization
conditions of one or more classes of preferred shares, or the introduction of a new
and more favored class;



5.6. Decisions taken by the Board: any of the matters listed below may be approved by a
Board Meeting of any of the Petrochemical Companies only if Petrobras has expressed its approval
thereof at a prior Meeting:




(a) acquisition, divestment or encumbrance of the goods constituting the permanent
assets when the specific transaction involves an amount of more than 20% (twenty per
cent) of the net equity of the Petrochemical Company involved in the deal.




 









 






(b) Signature of contracts of any type whatsoever, when the specific transaction
involves an amount exceeding 20% (twenty per cent) of the net equity of the
Petrochemical Company involved in the deal, except for the signature of contracts
and transactions required for the normal businesses of the Petrochemical Companies.




(c) Conducting legal businesses with companies that are direct or indirect
subsidiaries, parent companies or subsidiaries of the parent companies of any of the
Parties, or that are affiliated thereto, although not applicable to corporate
integration by the Petrochemical Companies with regard to Copesul;




(d) Acquisition of stakes in other companies, except for the companies encompassed
by the scope of the registered corporate purpose of the Petrochemical Companies;



5.7. This Memorandum is endowed with the status of a Shareholders’ Agreement and must be kept on
file at each of the Petrochemical Companies in order to ensure compliance herewith, forbidding
whomsoever may be chairing a General Meeting or Board Meeting of any of them from submitting
matters to the respective entity for consideration where such decisions depend on the prior assent
of Petrobras as set forth in this Memorandum, without this Company having had the opportunity to
express its view.



VI. DURATION OF THE MEMORANDUM




     6.1. This Memorandum enters into effect the Global Purchase Date.



     6.2. This Memorandum will terminate in the following cases:




(i) Under full right of law, after 14 (fourteen) years; or




(ii) Through cancellation, as agreed in writing between the Parties.



 









 





VII. EXCLUSIVITY




7.1 The Parties hereby agree to comply with the terms and procedures established in this
Memorandum, with neither of them nor any of the affiliates thereof being empowered to sign any
other verbal or written voting agreements as long as this document remains in effect, involving
the Petrochemical Assets and the Petrochemical Companies.



VIII. PENALTIES




8.1. Unless specific provision is made herein, the Party failing to comply with the obligation
assigned thereto through the provisions in this Memorandum will be bound to compensate the other
Party for losses and damages caused thereto.



IX. GENERAL PROVISIONS




9.1. This Memorandum is binding on the Parties as well as the heirs and successors thereto as set
forth in the terms and periods hereof.



9.2. Unless otherwise stipulated in this Memorandum and in the Investment Agreement, each
Party will bear its own costs and expenditures incurred through the signature of this Memorandum
or through compliance or performance of its provisions, with no right to reimbursement or
repayment.



     9.3. Each Party will bear its own taxes incurred through the businesses covered by this
Memorandum, with no right to any reimbursement or repayment.



9.4. This Memorandum and the rights and obligations arising herefrom may not be assigned or
transferred either fully or partially by any of the Parties without the specific prior written
consent of the other Party, with the exception of Petrobras, which may assign its contractual
position or any of its rights and obligations to any of its subsidiaries, particularly Petroquisa
through prior notification forwarded to Braskem, with Petrobras remaining jointly liable for all
obligations assigned through this Memorandum.



 









 





9.5. This Memorandum presents the full understanding of the Parties on the matters covered
herein and will prevail over any other prior understandings or agreements between the Parties on
these same matters, except for the Investment Agreement and the Non-Disclosure Agreement signed by
the Parties with Ultrapar.



9.6. This Memorandum may be altered only through a written amendment signed by all the Parties.



9.7. Any delay or omission in the exercise of any right, option or remedy assigned to the Parties
due to any breach of the obligations by the other Party will not adversely affect such rights,
obligations or remedies, and will not be construed as waiving them or concurrence with such
default, nor will this constitute any novation or precedent with regard to any other breach,
default or late compliance.



9.8. Should any of the provisions in this Memorandum be deemed unlawful, invalid or
non-effective, all the other provisions will continue to prevail, being unaffected by such
judgment, with the Parties hereby agreeing to substitute the affected provision in good faith by
some other that produces the same effects as intended by the original Clause, in the best possible
manner.



9.9. All communications, notices, proposals or notifications covered by this Memorandum or arising
herefrom must be presented in writing and delivered personally against a written receipt by
fac-simile or by mail with notification of receipt, forwarded to any of the representatives of the
Parties at the following addresses:



To Braskem:

Mauricio Roberto de Carvalho Ferro

Avenida das Nações Unidas, 4777, 3° andar,

São Paulo, SP,

CEP 05477-000

Telephone: 55 11 3443-9413 Fax: 55 11 3023-0416




 









 





To Petrobras:

Executive Manager for New Business — Rogério Gonçalves
Mattos,
 Avenida
República do Chile, 65, 22 andar, sala 2202,

Rio de Janeiro RJ,

CEP 20031-912

Telephone: 55 21 3224-1033

Fax: (021) 3224-0929




To Petroquisa:

CEO — José Lima de Andrade Neto, Avenida 
Republica do
Chile, 65, 9 andar, sala 903

Rio de Janeiro CEP 20031-912

Telephone: 55 21 3224-0802




Or other addresses and/or fac-simile numbers that any of the Parties may notify to the others in
compliance with the provisions in this item.



10.10. Should any disagreement, dispute or claim arise between any of the Parties over this
Memorandum (“Dispute”), and should this not be resolved in a friendly
basis within 30 (thirty) days as from the date on which the Parties are notified of the Dispute for
the purposes of this item, the matter will be resolved through arbitration conducted by three
arbitration judges in compliance with the rules of the International Chamber of Commerce (ICC) in
Paris, France. The arbitration proceedings will be conducted in Portuguese, in the City of Rio de
Janeiro, State of Rio de Janeiro, Brazil.



10.11. Each Party retains the right to apply to the competent common Courts requesting legal
measures in order to obtain preliminary writs or temporary restraining orders protecting or
safeguarding rights or in preparation to the establishment of the Arbitration Court, without this
being construed as waiving arbitration. In order to exercise such protection through the Courts,
the Parties hereby elect the Law Courts of the City of Rio de Janeiro Assizes, expressly waiving
any other, no matter how much more privileged it may be.




 









 








Being in full and fair agreement, the Parties sign this Memorandum of Understanding in 2 (two)
copies of identical form and content in the presence of the undersigned witnesses.



São Paulo, March 18, 2007




Signed




PETRÓLEO BRASILEIRO S.A. – PETROBRAS




Signed           Signed




BRASKEM S.A.




Signed




PETROBRAS QUIMICA S.A. – PETROQUISA




Witnesses:

1. Signed

Name: Rebecca Molina Ferreiro

ID: 35.108.263-3




2. Signed

Name: Guilherme Pinto Nazar

ID: 09.112.868-6