This Summary of negotiations with State and Federal Prosecutors and Frequently Asked Questions - FAQ has been put together by Samarco and its

Transcription

1 This Summary of negotiations with State and Federal Prosecutors and Frequently Asked Questions - FAQ has been put together by Samarco and its advisors in order to provide more visibility in the process to all of our stakeholders, but in particular to our bondholders and lenders. 1

2 Summary of negotiations with State and Federal Prosecutors The Federal Prosecutors Office ( Federal Prosecutors ) was not party to the agreement signed on March 2016 ( Global Agreement ) regarding the R$20 billion (~US$6.13 billion) civil claim (the R$20 Bn Civil Claim ) relating to the Fundão tailings dam failure on November 5, At the time, the Federal Prosecutors argued that expert analyses were required prior to an agreement and thus filed the R$155 billion (~US$47.5 billion) civil claim (the R$155 Bn Civil Claim ). In response to those requests, Samarco, BHP and Vale started discussions with Federal Prosecutors to reach a Global and Final Agreement ( Final Agreement ) to settle both civil claims (R$20 Bn and R$155 Bn Civil Claims). On January 18, 2017 Samarco, BHP and Vale (together with BHP the Shareholders ) entered into two preliminary agreements ( Preliminary Agreement ) with the Federal Prosecutors in Brazil in relation to the Fundão tailings dam failure. The first preliminary agreement ( Preliminary Agreement ) outlined the process and timeline for negotiation of a settlement of the R$155 Bn Civil Claim and of the Prosecutors objections to the Global Agreement for the R$20 Bn Civil Claim. The Preliminary Agreement included the following provisions: I. Replacement of the injunctive order to deposit R$1.2 billion in a Court account (~US$370 million) issued in the R$20 Bn Civil Claim with security of R$2.2 billion (~US$675 million) comprised of (i) pledge over Samarco s assets of R$800 million (~US$245 million), (ii) insurance bonds of R$1.3 billion (~US$400 million), and (iii) deposits of short-term financial instruments of R$100 million (~US$30 million) herein together as Interim Security II. Suspension of the (i) R$155 Bn Civil Claim commenced by the Federal Prosecutors in Brazil against Samarco and the Shareholders, including the analysis of the applications by the Federal Prosecutors for a R$7.7 billion injunction (~US$2.4 billion), (ii) the R$20 Bn Civil Claim commenced Federal and State Governments against Samarco and the Shareholders, and (iii) the R$20 billion injunction (~US$6.13 billion) in the criminal case initiated by the Federal Prosecutors. III. Retention of 3 experts to advise the Federal Prosecutors in relation to: (i) the environmental impacts of the dam failure (Environment expert Lactec); (ii) the social-economic impacts of the dam failure (Social-Economic expert Integratio was the entity initially nominated); and (iii) the ongoing assessment and monitoring of the Programs (Program expert Ramboll) The second preliminary agreement ( Barra Longa Agreement ) established the obligation of Samarco and Shareholders to, within 90 days from signing, reserve R$200 million (~US$60 million) to fund remediation and compensation activities in the municipalities of Barra Longa, Rio Doce, Santa Cruz do Escalvado and Ponte Nova. In March 2017, the judge of the 12th Federal Civil Court (the Judge ) issued a decision (i) ratifying the Barra Longa Agreement; and (ii) partially ratifying the Preliminary Agreement, upon request of the parties, as follows: Approved the retention of Ramboll and Lactec; 2

3 Suspended the judicial proceedings; Accepted the security offered through June 30, 2017; Upon a request from the State and Federal Prosecutors to reject the expert initially appointed to the social-economic advisement, the Judge provided a 60 day period in which the State Prosecutors, Federal Prosecutors, Samarco and Shareholders agree and engage a new expert to review the social-economic activities and respective programs. By the end of April 2017, Samarco and the Shareholders funded the entire R$200mm at Fundação Renova for remediation measures in Barra Longa and nearby municipalities, as agreed in the Barra Longa Agreement On June 21, 2017, Samarco, BHP and Vale filed a judicial request to extend the deadline for a final settlement agreement and the Interim Security validity to October 30, 2017, allowing the parties to continue negotiations and to keep working on an agreed solution for the Socieconomic expert. On June 26, 2017 the Federal Prosecutors agreed with the companies request and on June 29, 2017 the 12 th Federal Court Judge granted the extension. Upon a request made by the Federal and State Prosecutors, the parties agreed to replace the initially appointed expert from the socioeconomic area, and on November 16, 2017 entered with Federal and State Prosecutors into an amendment to the Preliminary Agreement ( Amendment Agreement ). On November 20, 2017, the 12th Federal Civil Court of Minas Gerais issued a decision in which, among other things: agreed to engage Fundo Brasil and Fundação Getúlio Vargas ( FGV ) to develop their case analysis and elaborate, in 90 days, a proposal as experts for the social-economic tasks as defined in the Preliminary agreement. If the parties agree on the final economic and technical proposal for each of them, Fundo Brasil and FGV shall then be retained to perform such activities; created Fórum de Observadores (or Forum of Observers in free translation), a consulting body, that will monitor and evaluate the work performed by the Prosecutors experts; appointed Fundo Brasil to coordinate the technical advisory to be provided to the affected communities and individuals; appointed Fundo Brasil to conduct a minimum of 15 public hearings in the impacted localities by the Fundão Dam incident in the states of Minas Gerais and Espirito Santo; and appointed FGV as the entity in charge of the assessment of the social-economic damages resulted from the Fundão dam break Samarco, Vale, BHP and the Federal Prosecutors have also jointly requested, and the 12 th Federal Civil Court of Minas Gerais approved, an additional 150 days, ending on April 20, 2018 for the parties to continue negotiations for the settlement of the Public Civil Claims. During the 150 day extension period, the Interim Security and the suspension of legal proceedings and injunctions under the Preliminary Agreement remained in place. Due to the reduced time to finalize the negotiations, hire the social economic experts and conclude the Final Agreement, on April 19, 2018, Samarco and Shareholders requested an additional extension for the negotiations until June 25, The Federal Prosecutors agreed with the extension and on April 20, 2018 the 12 th Federal Court Judge granted the new extension. During the new extension period, the 3

4 Interim Security and the current suspension of legal proceedings and injunctions under the Preliminary Agreement will remain in place. Looking ahead, the next steps are: Parties to consider the preliminary assessments by the 2 experts that are currently retained, which are non-binding; Parties to consider the assessments and inputs from the affected communities, which are nonbinding; Parties to continue to negotiate the governance for the development and implementation of Renova s programs; Parties to discuss and execute the governance agreement (which will bring Prosecutors into FA 1.0 governance) by 25 June 2018, and then submit it for ratification by the 12th Federal Civil Court of Minas Gerais Any changes to the programs under the Global Agreement and/or the scheduled annual financial support from Samarco are not expected to be negotiated before the next deadline. 4

5 Frequently Asked Questions - FAQ 1) What did the Prosecutors seek that was not already included in the Global Agreement? The Federal prosecutors chose to be out of the negotiations for the Global Agreement, fought its homologation and filed the R$ 155 bn case requesting experts to assist them evaluating the extent of the damages, from an environmental and a social perspective, the latter whilst assuring participation of the people affected by the incident, and if the remediation measures in place are effective in achieving their respective purposes. They also want to reach an agreement regarding financial guaranties and review the governance structure. Any discussion on adjustments in the Global Agreement will depend on a negotiation process and the assessments currently being made by the experts during the following months. 2) What explained the delay in the negotiations with Federal prosecutors? The delay is explained for several factors including: (i) the complexity around the Fundão Dam incident; (ii) the number of parties involved; (iii) the negotiations to include the State Prosecutors of Minas Gerais in the negotiations; (iv) the delays in the engagement process of the Socio-Economic expert and (v) the time needed to receive the inputs and assessments from the communities affected by the incident on the terms of the Final Agreement. 3) When do you expect to conclude the negotiations with Prosecutors regarding the scope of the Programs and financial support to Fundação Renova? It is premature to estimate any timing and/or the need of amendments to the Global Agreement. At this point, we are working to conclude the negotiations related to the corporate governance of the Global Agreement, which we expect to finalize by June 25, ) Have you started discussing with prosecutors in regard to the amendments to the programs and or financial compensation/remediation? If so, how much do you expect it to change your previous projections? Until this moment, the parties have been negotiating governance rules and the expectation that, following the execution of the governance agreement, parties will have an additional time to negotiate eventual changes to the programs. Any amendment to the programs or to the financial compensation/remediation, if any, will only happen after the public hearings, final reports from the experts, conclusion of the negotiations related to the corporate governance of the Global Agreement and extensive negotiations between Samarco, Shareholders and Prosecutors. 5) Are there any relevant lawsuits that will not be included in the scope of the Global Agreement and the Final Agreement with Federal Prosecutors? If so, please describe it. Upon a Final Agreement with Federal Prosecutors, Samarco understands that the majority of relevant lawsuits will be expressly included in the scope of such agreement. Nonetheless, this consolidation will depend on judicial decisions by the local Judges/Courts, which must recognize that the claims of each lawsuit are covered by the Global Agreement and/or the Final Agreement and therefore send the respective case files to the 12th Federal Court Judge. Parties are still discussing whether Mariana s civil claim will be included in the scope of the Global agreement. Lawsuits from small cities and business/commercial claims might not be consolidated under the 12th Federal Court Judge and could be carried out in other venues. 5

6 The termination of the R$ 155 bn and the R$ 20 bn cases will depend on the terms of the Final Agreement. Some claims included in these cases might not be settled and therefore the lawsuits will continue towards a merits decision in relation to the unsettled items (i.e. the moral damage part of the R$ 155bn civil claim, which is established at a minimum of R$15 bn according to the prosecutors civil claim). Finally, it s important to note that a Final Agreement with Prosecutors is expected to happen only after June 25, 2018 and in this meantime the R$20 bn and R$ 155 Bn civil claims will most likely continue to be suspended. 6) After reaching a Final Agreement with the Federal Prosecutors, will Samarco still be subject to additional lawsuits? If so, please describe from which parties and the context. The Final Agreement is expected to assure the full remediation of the damages caused by the Fundão dam break. However, according to Brazilian law, no agreement can ensure that other lawsuits will not be filed. New lawsuits are more likely to be filed by stakeholders that are not part of the agreements (NGOs and municipalities, for example). If any stakeholder files a new lawsuit against Samarco, the judge in charge of this hypothetical case might check whether the requests are already included in the Global Agreement and/or the eventual Final Agreement scopes. 6