Shareholder Agreement

Transcription

1 Public Disclosure Authorized CONFORMED COPY Public Disclosure Authorized Public Disclosure Authorized Shareholder Agreement (VALESUL Aluminum Project) between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT and COMPANHIA VALE DO RIO DOCE LOAN NUMBER 1660 BR and Public Disclosure Authorized SHELL BRASIL S.A. (PETROLEO) and REYNOLDS INTERNATIONAL, INC. Dated March 7, 1979

2 0 )LOAN NUMBER 1660 BR SHAREHOLDERS' AGREEMENT AGREEMENT, dated March 7, 1979, between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT (hereinafter called the Bank), on one side, and, on the other side, COMPANHIA VALE DO RIO DOCE (hereinafter called CVRD) and SHELL BRASIL S.A. (PETROLEO) (hereinafter called Shell), and REYNOLDS INTERNATIONAL, INC. (hereinafter called RII) (hereinafter sometimes individually called Shareholder and collectively called the Shareholders). WHEREAS by the Loan Agreement of even date herewith between the Bank and VALESUL ALUMINIC S.A. (hereinafter called the Borrower) the Bank has agreed to make to the Borrower a loan in various currencies equivalent to ninety-eight million dollars ($98,000,000), on the terms and conditions set forth in the Loan Agreement, but only on condition that the Shars,olders undertake certain obligations with respect to the Borrower and said loan; WHEREAS CVRD, Shell and RII hold %, 35% and % of the voting stock of the Borrower, respectively; and WHEREAS the Shareholders in consideration of the Bank's entering into the Loan Agreement with the Borrowei, have agreed to undertake the obligations set forth in this Agreement; NOW THEREFORE the parties hereto hereby agree as follows: ARTICLE I Definitions Section Wherever used in this Agreement, unless the context otherwise requires, the several terms defined in the General Conditions and in the Loan Agreement including the Recitals thereto have the respective meanings therein set forth and the term "Affiliate" means any company directly or indirectly controlled by (a) CVRD or a Subsidiary of CVRD or both, (b) RII or Reynolds Metals Company or both, or (c) Shell or N.V. Koninklijke Nederlansche Petroleum Maatschappij, a Netherlands compan, (hereinafter called Royal Dutch) or The Shell Transport and "'rading Company Limited, an English company (hereinafter called Shell T. and T.) or any company other than Shell, in whatever country organized, in which Royal Dutch and Shell T. and T. both together or either of them shall directly or indirectly through one or more

3 intermediaries own or have the right to exercise control of share capital carrying more than fifty per cent (50%) of the voting rights. ARTICLE II Payment of Capital and Provision of Funds Section CVRD, Shell and RII shall provide to the Borrower funds up to one hundred and forty-seven million dollars ($147,000,000) equivalent in respect of acquisition of capital stock of the Borrower as and when required for che purpose of carrying out the Project. Section CVRD, Shell and RII shall, in addition to the amounts referred to in Section 2.01 of this Agreement and Recitals (C) and (D) of the Loan Agreement, provide to the Borrower funds up to thirteen million dollars ($13,000,000) equivalent in respect of acquisition of capital stock of the Borrower as and when required for the purpose of carrying out the Project. Section (a) Upon request by any of the Shareholders or the Bank during the execution of the Project, the Bank and the Shareholders shall review the estimated cost of the Project, and, if it results from the review that such cost exceeds four hundred and three million dollars ($403,000,000) equivalent, the Shareholders shall, within 90 days from the date of such review, prepare and furnish to the Bank a plan of action for purposes of financing the completion of the Project. (b) The Shareholders shall carry out such plan of action promptly thereafter. Section If the Shareholders fail to agree on the plan of action referred to in Section 2.03 of this Agreement or if such plan is not satisfactory to 'the Bank, CVRD, Shell and RII undertake to provide to the Borrower, in form and on terms * permitted by the Loan Agreement, such funds as shall be required to complete the Project. Section The Shareholders shall provide to the Borrower such funds as shall be required by the Borrower to achieve, on the Compliance Date, a debt/equity ratio of 60:40.

4 * -3- Section The obligations of the Shareholders under Sections 2.01, 2.02, 2.03 (b), 2.04 and 2.05 of this Agreement shall be several and proportionate as follows: % shall be the responsibility of CVRD, 35% shall be the responsibility of Shell and % shall be the responsibility of RII, such obligations shall be several, not joint, and shall be independent of each other, and neither CVRD nor Shell nor RII shall be entitled to deny or delay performance of its obligations on grounds of non-performance by the other Shareholder. Section For purposes of this Article the Project shall be deemed completed on the Compliance Date. ARTICLE III Other Covenants Section Each of the Shareholders shall exercise its rights and powers as a shareholder of the Borrower and every other right, power and remedy available to it, to cause the Borrower punctually to perform all of its obligations under the Loan Agreement, and shall not take any action which would prevent or interfere with the performance by the Borrower of such obligations; provided, however, that this Section shall not be construed so as to require any provision of funds, materials or equipment to the Borrower in addition to the funds to be provided to the Borrower pursuant to Article II of this Agreement. Section (a) The obligations of the Shareholders under Article II of this Agreement shall be suspended in the event of physical impossibility for the Borrower for a period of one hundred and eighty (180) consecutive days or for a period of one hundred and eighty (180) days in the aggregate within any nine (9) month period, to carry out the Project, as a result of war (declared or not), invasion or revolution in Brazil, or if any act or acts, or omission to act, of the Guarantor or of any governmental authority of the Guarantor not provoked by a failure of the Borrower to comply with any law or regulation of the Guarantor or of a governmental authority of the Guarantor; provided, however, that if within a period of eighteen (18) months after the date of suspension of such obligations the carrying out of the Project can be resumed, the obligations of the Shareholders hereunder shall resume their full force and enforceability as if no such suspension had occurred, except that if the obligations of the

5 40 Shareholders hereunder shall have been suspended for a continuous period of more than six (6) months, the date on which such obligations shall be fully resumed shall be a date nine (9) months after the date on which such physical impossibility shall have ceased. The expression "physical impossibility for the Borrower... to carry out the Project" shall include any involuntary divestiture of (i) all :r substantially all of the assets of the Borrower, or (ii) all or substantially all of the shares of the Borrower held by Shell or RII or by any Affilitate of Shell or RII. (b) The Shareholders shall be permanently freed from their obligations under Article II of this Agreement if, eighteen (18) months after the date of suspension under paragraph (a) of this Section of such obligations, the physical impossibility therein referred to shall still continue. Section Until the termination of this Agreement neither CVRD nor Shell nor RII nor any of their Affiliates shall assign, sell or otherwise dispose of, or pledge or otherwise encumber, any share subscription rights or shares in the capital stock of the Borrower except for the benefit of the Guarantor or the Bank, without the prior written consent of the Bank, any such consent to be always conditional upon the assignee, purchaser or creditor assuming all the obligations of the pertinent Shareholder under this Agreement; provided, however, that no consent of the Bank shall be required for any transfer of such rights or shares to any Affiliate of the pertinent Shareholder if such Shareholder shall guarantee such obligations. Section Each of the Shareholders shall take such action as shall be required on its part to assist the Borrower in carrying out the study and preparing the marketing plan referred to in Section 3.06 of the Loan Agreement by the date specified therein. Section Upon termination of the Alumina Supply Agreements, the Shareholders shall ensure that all supplies of alumina made available to the Borrower are made available to it at a competitive price and on an arm's-length commercial basis. Section (a) Shell and RII hereby agree to CVRD taking the action described below and CVRD hereby agrees to inform the Bank of any proposed offer resulting from such action. (b) CVRD shall take such action as shall be required on its part to offer, for sale to private Brazilian investors, such

6 percentage of the Borrower's voting stock held by CVRD as shall be required to reduce the percentage of such voting stock held by CVRD to not more than 49% and to not less than 40%, such offer to be made before the Completion Date. (c) If by the,completion Date not all of the Borrower's voting stock to be sold pursuant to paragraph (a) above has been sold by CVRD, CVRD shall offer, for sale to private Brazilian investors: (i) a third-of the remainder of such stock during each year of a three-year period starting on the Completion.Date, and (ii) in the second and third years of such period, the stock unsold during the previous year or years as the case may be. (d) If in any of the years referred to in paragraph (b) above, the Borrower's voting stock held by CVRD and allocated to be sold during that year is not sold, CVRD shall, in consultation with the Bank, seek the advice of an expert third party to determine the timing and the terms and conditions of, and the most appropriate manner to proceed with, the sale of such stock. Section Arbitration. (a) Any controversy between the Bank and the Shareholders and any claim by any such party against any other such. party arising under this Agreement which shall not be determincl by agreement of the parties shall be submitted to arbitration by an Arbitral Tribunal as hereinafter provided. (b) The parties to such arbitration shall be the Bank on the one side, the Shareholders on the other side. (c) The Arbitral Tribunal shall consist of three arbitrators appointed as follows: one arbitrator shall be appointed by the Bank; one arbitrator shall be appointed by the Shareholders, or, if they shall not agree, by the International Chamber of Commerce (hereinafter called ICC), and the third arbitrator (hereinafter sometimes called the Umpire) shall be appointed by agreement of the parties or, if they shall not agree, by the ICC. If the Bank shall fail to appoint its arbitrator, such arbitrator shall be appointed by the Umpire. In case any arbitrator appointed in accordance with this Section shall resign, die or become unable to act, a successor arbitrator shall be appointed in the same manner as herein prescribed for the appointment of the original arbitrator and such successor shall have all the powers and duties of such original arbitrator.

7 -6- (d) An arbitration proceeding may be instituted under this Section upon notice by the party instituting such proceeding to the other parties. Such notice shall contain a statement setting forth the nature of the controversy or claim to be submitted to arbitration and the nature of the relief sought. Within sixty (60) days after the giving of such notice, each side shall notify the other side of the arbitrator appointed by it. (e) If within ninety (90) days after the giving of such notice instituting the arbitration proceeding the parties shall not have agreed upon an Umpire, any party may request the appointment of an Umpire as provided in paragraph (c) of this Section. (f) The Arbitral Tribunal shall convene at such time and place as shall be fixed by the Umpire. Thereafter, the Arbitral Tribunal shall determine where and when it shall sit. (g) "ubject to the provisions of this Section and except as the parties shall otherwise agree, the Arbitral Tribunal shall decide all questions relating to its competence and shall determine its procedure. All decisions of the Arbitral Tribunal shall be by majority vote. (h) The Arbitral Tribunal shall afford to all parties a fair hearing and shall render its award in writing. Such award may be rendered by default. An award signed by a majority of the Arbitral Tribunal shall constitute the award of such Tribunal. A signed counterpart of the award shall be transmitted to each party. Any such award rendered in accordance with the provisions of this Section shall be final and binding upon the parties to this Agreement. Each party shall abide by and comply with any such award rendered by the Arbitral Tribunal in accordance with the provisions of this Section. (i) The parties shall fix the amount of the remuneration of the arbitrators and such other persons as shall be required for the conduct of the arbitration proceedings. If the parties shall not agree on such amount before the Arbitral Tribunal shall convene, the Arbitral Tribunal shall fix such amount as shall be reasonable under the circumstances. The Bank and each Shareholder shall defray its own expenses in the arbitration proceedings. The costs of the Arbitral Tribunal shall be divided between and borne equally by the Bank, on the one side,.and the Shareholders on the other. Any question concerning the division of the costs of the Arbitral Tribunal or the procedure for payment of such costs shall be determined by the Arbitral Tribunal.

8 S- 7 - (j) The provisions for arbitration set forth in this Section shall be in lieu of any other procedure for the determination of controversies between the parties to this Agreement or any claim by any such party against any other such party arising hereunder. (k) If within thirty (30) days after counterparts of the award shall be delivered to the parties the award shall not be complied with, any party may enter judgment upon, or institute a proceeding to enforce, the award in any court of competent juris-- diction against any other party, may enforce such judgment by execution or may pursue any other appropriate remedy against such other party for the enforcement of the award or the provisions of t*his Agreement, (1) Service of any notice or process in connection with any proceeding under this Section or in connection with any proceeding to enforce any award rendered pursuant to this Section may be made upon the parties to this Agreement in the manner provided in. Section 3.10 of this Agreement. The parties to this Agreement waive any and all other requirements for the service of any such notice or process. Section This Agreement shall come into force and effect on the Effecti-e Date of the Loan Agreement. Section This Agreement and the obligations of the parties hereunder shall terminate when the Loan Agreement shall terminate in accordance with its terms. Section Any notice or request required or permitted to be given or made under this Agreement shall be in writing. Such notice or request shall be deemed to have been duly given or made when it shall have been delivered by hand or by mail, telegram, cable, telex or radiogram to the party to which it is required or permitted to be given or made at such party's address hereinafter specified, or at such other address as such party shall have designated by notice to the party giving such notice or making such request. Section No delay in exercising, or omission to exercise, any right, power or remedy accruing to any party under this Agreement upon any default shall impair any such right, power or remedy or be construed to be a waiver thereof or an acquiescence in such default; nor shall any action of such party in respect of any default, or any acquiescence by it in any default, affect

9 - - or impair any right, power or remedy of such party in any other or subsequent default. respect of Section The following addresses are specified for the purposes of Section 3.10 of this Agreement: For the Bank: International Bank for Reconstruction and Development 1818 H Street, N.W. Washington, D.C United States of America Cable address: INTBAFRAD Washington, D.C. For the Shareholders: Telex: (ITT) (RCA) or (WUI) Companhia Vale do Rio Doce Av. Graga Aranha Andar Rio de Janeiro - RJ Brasil Cable' address: Telex: VALERIODOCE (021) and Rio de Janeiro Shell Brasil S.A. (Petroleo) Av. Rio Branco Rio de Janeiro - RJ Brasil Cable address: Telex: SHELL BR (021) Rio de Janeiro Reynolds International, Inc. West Broad Street No Richmond Virginia United States of America

10 Cable address: Telex: FOILWAX Richmond IN WITNESS WHEREOF the parties hereto, acting through their representatives thereunto duly authorized, have caused this Agreement to be signed in their respective names and delivered in the District of Columbia, United States of America, as of the day and year first above written. INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT By Is/ N. Ardito-Barletta Regional Vice President Latin America and the Caribbean COMPANHIA VALE DO RIO DOCE By Is/ Luis do Amaral Pereira Is/ Samir Zraick Authorized Representative SHELL BRASIL S.A. (PETROLEO) By /s/ Peter Landsberg Authorized Representative REYNOLDS INTERNATIONAL, INC. By Is/ Eugene Desvernine Authorized Representative