SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A-16
OR 15D-16 OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of November, 2017
(Commission File No. 1-14862 )
BRASKEM S.A.
(Exact Name as Specified in its Charter)
N/A
(Translation of registrant's name into English)
Rua Eteno, 1561, Polo Petroquimico de Camacari
Camacari, Bahia - CEP 42810-000 Brazil
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F ___X___ Form 40-F ______
Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(1). _____
Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(7). _____
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes ______ No ___X___
If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82- _____.
EXHIBIT I
PROTOCOL AND JUSTIFICATION OF THE MERGER
OF BRASKEM PETROQUÍMICA LTDA. INTO BRASKEM S.A.
PROTOCOL AND JUSTIFICATION OF THE TRANSACTION OF MERGER OF BRASKEM PETROQUÍMICA LTDA. INTO BRASKEM S.A.
entered into by and between
BRASKEM PETROQUÍMICA LTDA.
, a business limited liability company, with its principal place of business at Rua Hidrogênio, nº 1.404, Parte, Polo Petroquímico de Camaçari, Municipality of Camaçari, State of Bahia, CEP 42810-010, enrolled in the National Register of Legal Entities (CNPJ) under No. 04.705.090/0006-81, with its articles of incorporation filed with the Commercial Registry of the State of Bahia under State Number (NIRE) 29.203.889.686, herein represented pursuant to its Articles of Association, hereinafter referred to simply as “
MERGEE
” or “
BRASKEM PETRO
”; and
BRASKEM S.A.
, a publicly-held company, with its principal place of business at Rua Eteno nº 1.561, Complexo Petroquímico de Camaçari, Municipality of Camaçari, State of Bahia, CEP 42.810-000, enrolled in the CNPJ under No. 42.150.391/0001-70, with its articles of incorporation filed with the Commercial Registry of the State of Bahia under NIRE 29.300.006.939, herein represented pursuant to its Bylaws, hereinafter referred to simply as “
MERGOR
” or “
BRASKEM
”;
MERGOR
and
MERGEE
are hereinafter jointly referred to simply as “
PARTIES”
,
WHEREAS:
(i)
BRASKEM PETRO
is a limited liability company with fully subscribed and paid-up share capital in the amount of one billion, five hundred and seventy-two million, three thousand, six hundred and ninety-five Reais and thirty-two centavos (BRL 1,572,003,695.32), represented by one billion, five hundred and seventy-two million, three thousand, six hundred and ninety-five (1,572,003,695) quotas;
(ii) on October 16, 2017,
BRASKEM
acquired from
Braskem Incorporated Limited
, a business company incorporated in accordance with the laws of the Cayman Islands, with its principal place of business at P.O. Box 309, Grand Cayman, Cayman Islands, enrolled in the local register under No. 30166, and in the CNPJ/MF under No. 06.103.065/0001-49 (“Braskem Inc”), one (1) quota issued by
BRASKEM PETRO
, of which Braskem Inc was the holder, thus becoming the holder of the entire quota capital of
BRASKEM PETRO
, which became its wholly-owned subsidiary, pursuant to Paragraph 2, of article 251 of Law No. 6,404, of December 15, 1976 (“
Brazilian Corporation Law
”); and
(iii) the transaction of merger of
MERGEE
into
MERGOR
will represent an alignment of interests of the companies involved, as well as simplify the current corporate structure, by consolidating the activities of the
PARTIES
in a single company, thus reducing financial and operating costs;
the
PARTIES
resolve to enter into this Protocol and Justification of Merger (“
Protocol and Justification
”), pursuant to articles 1,116 to 1,118 of Law No. 10,406, of January 10, 2002 (“
Civil
Code
”), and 224, 225 and 227 of the Brazilian Corporation Law, and CVM Ruling No. 565, of June 15, 2015, under the following terms and conditions:
1.
PROPOSED TRANSACTION AND JUSTIFICATION
1.1.
The proposed transaction consists of the merger of
BRASKEM PETRO
into
BRASKEM
,
with the transfer of all net assets of the former
to the latter, which will universally succeed the former,
in all of its assets, rights and obligations, pursuant to article 227 of the Brazilian Corporation Law
and
article 1,116 of the Civil Code (“
Merger
”).
1.2.
The
Merger
is part of the corporate restructuring of the
PARTIES
and is intended to simplify the current corporate structure, by consolidating the activities of the
PARTIES
, thus allowing for a reduction in the financial and operating costs.
1.3.
The appraisal of the net book equity of
MERGEE,
so as to make accounting entries at
MERGOR
, was carried out by the specialized company indicated in item 2.2 below, on the base date set forth in item
2.1
of this
Protocol and Justification
, and based on the criteria set forth in the Brazilian Corporation Law and in CVM Ruling No. 565/2015, so as to prepare the financial statements.
1.4.
The balances of the credit and debt accounts of
MERGEE
shall be transferred to the accounting books of
MERGOR
, with the required adjustments.
1.5.
The assets, rights and obligations of
MERGEE
to be transferred to
MERGOR
are the ones described in detail in the accounting appraisal report of
MERGEE
.
1.6.
Once the
Merger
is approved,
BRASKEM
will universally succeed
BRASKEM PETRO
in all of its rights and obligations, and
BRASKEM PETRO
shall be legally extinguished pursuant to art. 227 of the Brazilian Corporation Law
and article 1,118 of the Civil Code.
2.
APPRAISAL CRITERIA AND REPLACEMENT RATIO
2.1.
The
Merger
will have, as a reference, for all legal purposes, the base date of August 31, 2017 (“
Base Date
”).
2.2.
In compliance with the legal requirements, especially the provisions of articles 8 and 227 of the Brazilian Corporation Law, the managers of the
PARTIES
engaged specialized company Apsis Consultoria e Avaliações Ltda., a company enrolled in the CNPJ/MF under
No.
27.281.922/0001-70, with its principal place of business at Rua da Assembleia, nº 35, 12º andar, Centro, in the City of Rio de Janeiro/RJ – CEP 20.011-001 (“
Apsis
”), as the responsible for preparing the book appraisal report of the net equity of
MERGEE
, for purposes of the accounting entries at
MERGOR
(“
Appraisal Report
”), which considered as base the analytical balance sheet of
BRASKEM PETRO
drawn up on the Base Date, which documents are part of this
Protocol and Justification
as
Exhibit A (Appraisal Report and Analytical Balance Sheet of Braskem Petroquímica Ltda.)
.
2.3.
The engagement of the specialized company and the Appraisal Report, mentioned in item 2.2 above, shall be respectively submitted to the ratification and approval of the general meeting of MERGOR and of the quotaholders meeting of MERGEE, pursuant to article 227, Paragraph 1, of the Brazilian Corporation Law and article 1,117, Paragraph 2, of the Civil Code.
2.4.
The specialized company declared that (
i
) there is no actual or potential conflict or communion of interests with the shareholders of the
PARTIES
, or, even, with regard to the Merger itself; and (
ii
) the shareholders/quotaholders or managers of the
PARTIES
have not instructed, limited, hindered or practiced any acts that have or may have jeopardized the access, use or knowledge of information, assets, documents or work methodologies that are relevant for the quality of its findings.
2.5.
Considering that
MERGEE
is a wholly-owned subsidiary of
MERGOR
, no shares shall be issued to replace the quotas issued by
MERGEE,
which shall be cancelled due to the
Merger
.
3.
TREATMENT OF THE EQUITY CHANGES BY THE MERGER DATE AND PREMIUM
3.1.
The equity changes appraised at
BRASKEM PETRO
between the Base Date and the
Merger
date shall be fully registered, for all purposes, in the accounting books of
MERGEE
, and acknowledged by
BRASKEM
in the equity adjustment results account.
3.2.
Any premiums registered in the investments of
BRASKEM PETRO
to be transferred to
BRASKEM
due to the
Merger
shall be afforded the same treatment than the one currently afforded by
BRASKEM PETRO
and shall, after the
Merger,
be used for tax purposes, by
BRASKEM
, pursuant to the prevailing laws and without issue of shares.
4.
OVERALL AMOUNT OF THE NET EQUITY AND THE QUOTAS TO BE CANCELLED
4.1.
According to the appraisal made by
MERGEE
on the Base Date,
included in the Appraisal Report, the book value of the net equity to be transferred to
MERGOR
is two billion, one hundred and eighty-three million, one hundred and nine thousand, six hundred and thirty-four Reais and seventeen centavos (BRL 2,183,109,634.17), subject to the provisions in Clause 3 above.
4.2
Considering that the total number of quotas of
BRASKEM PETRO
are held by
MERGOR,
the
Merger
shall not result in a capital increase or change to the number of shares into which the share capital of
BRASKEM
is divided. Furthermore, considering the nonexistence of minority shareholders in
MERGEE
, the lack of capital increase in
MERGOR
and, therefore, replacement ratio, and the several precedents of CVM in this regard, the management of the
PARTIES
understand that the provisions in article 264 of the Brazilian Corporation Law do not apply to the
Merger
and that there is no justified reason for CVM demanding an appraisal report by the
PARTIES
at the price market, pursuant to CVM Resolution No. 559/08.
4.3
Due to the foregoing,
MERGOR
filed a waiver request with CVM regarding the preparation of
the report based on the net equity value of the quotas of
BRASKEM PETRO
and
BRASKEM
, under article 264 of the Brazilian Corporation Law, by virtue of the characteristics present in the concrete case, about which the technical area of CVM issued a favorable statement.
4.4
As mentioned in item 4.2 above, within the scope of the
Merger
, there shall be no capital increase for
MERGOR
and, consequently, no change to its net equity, with one billion, five hundred and seventy-two million, three thousand, six hundred and ninety-five (1,572,003,695) quotas issued by
BRASKEM PETRO
held by
MERGOR
being cancelled, as set forth in Paragraph 1 of article 226 of the Brazilian Corporation Law. The Bylaws of
BRASKEM
, however, shall be adjusted to reflect the supplementary activities that were once performed by
BRASKEM PETRO
.
4.5
Considering that
BRASKEM
is the only shareholder of
BRASKEM PETRO
and that, with the
Merger
, the corporate purpose of
BRASKEM
shall be increased only by the supplementary activities to the ones performed thereby, without any significant change to its social role, there shall be no withdrawal right as a result of the
Merger
, pursuant to article 137 of the Brazilian Corporation Law.
5.
FINAL PROVISIONS
5.1.
The implementation of the
Merger
shall be subject and submitted to the resolution by the general meeting of
BRASKEM
and the quotaholders meeting of
BRASKEM PETRO
, in which the following matters, among other things, shall be approved: (i) ratification of the engagement of specialized company
Apsis
for book appraisal of the net equity of
MERGEE
; (ii) the Protocol and Justification and other documents related to the merger of
BRASKEM PETRO
into
BRASKEM
; and (iii) the merger of
BRASKEM PETRO
into
BRASKEM
, pursuant to the terms set forth in this Protocol and Justification; (iv) the consequent extinction of
BRASKEM PETRO
, pursuant to the terms set forth in this Protocol and Justification; and (v) authorization to the managers of such companies, so they may practice any acts required for the
Merger
.
5.2.
The management of
MERGOR
shall practice all acts required for the implementation of the
Merger
, as well as shall pay for all costs and expenses arising therefrom.
5.3.
After the documents that approve the
Merger
are filed with the relevant Commercial Registries, the management of
BRASKEM
shall cause that any required annotations and registers are obtained in relation to the
Merger
, including, and especially, with federal, state and municipal instrumentalities, and other relevant bodies and registry offices, for the purpose of transferring thereto the enrollments, books, registries and other documents of
BRASKEM PETRO
, pursuant to the applicable laws.
5.4.
In order to avoid interruption of the activities, some operations shall be temporarily conducted in the name of
BRASKEM PETRO
until the measures set forth in item 5.3 above can be formalized.
5.5.
In compliance with the provisions of articles 20-A and 21 of CVM Ruling No. 481/09, all documents indicated therein shall be made available to the shareholders of
BRASKEM
as of the date of publication of the call notice of the extraordinary general meeting of
BRASKEM
, and may be consulted
in the following addresses: the Investors’ Relations website (http://www.braskem-ri.com.br/), the CVM website (www.cvm.gov.br), and the offices of
BRASKEM
located at Rua Lemos Monteiro, 120, 24º andar, Butantã, City of São Paulo, State of São Paulo - CEP: 05501-050.
5.6.
If any clause, provision, term or condition of this Protocol and Justification is considered invalid, the other clauses, provisions, terms and conditions that are not affected shall remain unaltered.
5.7.
The parties hereby elect the courts of the judicial district of Camaçari/BA to settle any doubts arising out of this
Protocol and Justification
.
6.
CONCLUSION
6.1.
These are the rules and procedures that, pursuant to law, the management of the
PARTIES
has made to govern this Merger transaction, and which they deem are in the interest of the companies.
IN
WITNESS WHEREOF, the Parties sign this
Protocol and Justification
in three (3) counterparts of equal form and content, and for a single purpose. together with the two undersigned witnesses.
Camaçari, October 26, 2017
BRASKEM PETROQUÍMICA LTDA.
BRASKEM S.A.
Witnesses:
Name:
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Name:
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ID (RG):
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ID (RG):
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: November 14, 2017
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BRASKEM S.A.
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By:
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/s/ Pedro van Langendonck Teixeira de Freitas
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Name:
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Pedro van Langendonck Teixeira de Freitas
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Title:
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Chief Financial Officer
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FORWARD-LOOKING STATEMENTS
This press release may contain forward-looking statements. These statements are statements that are not historical facts, and are based on management's current view and estimates offuture economic circumstances, industry conditions, company performance and financial results. The words "anticipates", "believes", "estimates", "expects", "plans" and similar expressions, as they relate to the company, are intended to identify forward-looking statements. Statements regarding the declaration or payment of dividends, the implementation of principal operating and financing strategies and capital expenditure plans, the direction of future operations and the factors or trends affecting financial condition, liquidity or results of operations are examples of forward-looking statements. Such statements reflect the current views of management and are subject to a number of risks and uncertainties. There is no guarantee that the expected events, trends or results will actually occur. The statements are based on many assumptions and factors, including general economic and market conditions, industry conditions, and operating factors. Any changes in such assumptions or factors could cause actual results to differ materially from current expectations.