Braskem SA 6-K 2008
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A-16
OR 15D-16 OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of October, 2008
(Commission File No. 1-14862 )
(Exact Name as Specified in its Charter)
(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.
If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82- _____.
Intermediate financial statement at
Independent auditors report
August 29, 2008
KPMG Auditores Independentes
/s/ Anselmo Neves Macedo
The accompanying notes are an integral part of these financial statements.
The accompanying notes are an integral part of these financial statements.
The accompanying notes are an integral part of these financial statements.
Main transactions not affecting cash
The following transactions not affecting cash were excluded from the statement of cash flows:
- Absorption of shares issued by Grust
This statement was prepared in accordance with the criteria described in CPC 3 of the Accounting Pronnouncements Committee.
The accompanying notes are an integral part of these financial statements.
(a) Braskem S.A. ("Braskem" or the "Company"), with 9 production units located in the States of Alagoas, Bahia, São Paulo and Rio Grande do Sul, engages in the production of basic petrochemicals such as ethene, propene, benzene, and caprolactam, in addition to gasoline and LPG (cooking gas). The thermoplastic resin segment includes polyethylene, polypropylene, PVC and Polyethylene Teraphtalate ("PET"). The Company also engages in the import and export of chemicals, petrochemicals, fuels, as well as the production and supply of utilities such as steam, water, compressed air and electric power to the companies in the Camaçari Petrochemical Complex in Bahia, and the rendering of services to those companies. The Company also invests in other companies, either as a partner or shareholder. The Company headquarters are located in Camaçari, State of Bahia.
(b) Corporate reorganization
Since its inception on August 16, 2002, the Company has undergone a major corporate restructuring process, disclosed to the market through material event notices. The main developments in 2007 and 2008 can be summarized as follows:
Pursuant to the agreement among Ultrapar, Braskem and Petrobras, the Company now holds the control of petrochemical assets, represented by Ipiranga Química S.A. (Ipiranga Química), Ipiranga Petroquímica S.A. (IPQ) and the latters interest in Companhia Petroquímica do Sul (Copesul). Assets associated with oil refining operations held by RPI will be shared on equal terms by Petrobras, Ultrapar and Braskem.
As new controller of these assets, in April 2007 the Company started to fully consolidate Ipiranga Química, IPQ and Copesul, considering a 13.4% interest in the total capital of Ipiranga Química. Until March 31, 2007, Copesul was proportionately consolidated, in accordance with CVM Instruction 247/97.
In October and November 2007, the Company proceeded with the purchase of the Ipiranga Group and acquired the common shares held by minority shareholders in RPI, DPPI and CBPI, in compliance with the provisions of the Brazilian Corporation Law. Under this acquisition, Braskem made Ultrapar an advance of R$ 203,713, and for consolidation purposes, considered from then on a 17.87% interest in the total capital of Ipiranga Química.
In March 2008, as all precedent conditions set forth in the sale agreement had been complied with, the transaction was recognized at the final amount of R$ 252,105, in the Other accounts receivable line, under current assets. The financial settlement of the transaction took place on April 1, 2008. As required by CVM Instruction 247/96, the Company determined equity in the earnings of the investment until March 2008.
Under the merger of shares, Petroquisa received 46,903,320 new common and 43,144,662 new class A preferred shares in Braskem, in accordance with the following replacement ratio determined based on the economic values of Grust and Braskem, as stated in reports of specialized firms: 0.067419126039 common and 0.062016407480 class A preferred shares issued by Braskem for one (1) common share issued by Grust. Braskem, in turn, received 695,697,538 common shares in Grust held by Petroquisa. As a result of the merger of shares, Braskems capital was increased by R$ 720,709, equal to the book value of Grusts shareholders equity as of March 31, 2008 (Note 19(a)).
Following the transfer, Braskem directly holds 100% of the voting capital and Ipiranga Química and Petroquímica Paulínia, 25.975% of the voting capital of IPQ, and 39.186% of the voting capital of Copesul.
The Company and its subsidiaries, as participants in the corporate restructuring process, may be affected by economic and/or corporate aspects as a result of the outcome of this process.
(c) Administrative Council for Economic Defense - CADE
In July 2008, CADE approved the transaction for the acquisition by Braskem and Petrobras of the Ipiranga Groups petrochemical assets. CADE made only one recommendation, namely the adjustment of the provision on non competition, so that the sellers compete only in the markets where they carried business activities prior to the acquisition.
In the same decision, CADE also approved the investment agreement whereby Petrobras contributed to Braskem its minority interests in Copesul, IPQ, Ipiranga Química and Petroquímica Paulínia.
With this decision, no more restrictions subsist with respect to the management and merger of the assets acquired.
2 Presentation of the financial statements
The Company financial statements were prepared for the specific purpose of complying with the provision of CVM Instruction 319/909 and protocol and justification of the merger of Ipiranga Petroquímica S.A. and are in accordance with the accounting practices adopted in Brazil and also in conformity with the rules and procedures determined by the Brazilian Securities Exchange Commission - CVM applicable to financial statements. These financial statements do not include the consolidated financial statements for the seven-month period ended July 31, 2008, or the individual and consolidated financial statements for this same period.
3 Significant Accounting Practices (a) Use of estimates
In the preparation of the financial statements, it is necessary to use estimates to record certain assets, liabilities and transactions. The financial statements of the Company include, therefore, various estimates regarding the selection of the useful lives of property, plant and equipment, amortization periods of deferred charges and goodwill on investments, as well as provisions for contingencies, income tax and other similar amounts.
(b) Determination of net income
Net income is determined on the accrual basis of accounting.
Sales revenues are recognized when the risk and product title are transferred to customers. This transfer occurs when the product is delivered to customers or carriers, depending on the type of sales.
The provisions for income tax and Value-Added Tax on Sales and Services (ICMS) are recorded gross of the tax incentive portions, with the amounts related to tax exemption and reduction recorded in a capital reserve, while the ICMS amounts are taken to income as required by CVM Instruction 469.
In accordance with the requirements of CVM Deliberation 273 and Instruction 371, deferred income tax is stated at probable realizable value, expected to occur as described in Note 17 (b).
Monetary and foreign exchange variations on assets and liabilities are classified in Financial income and Financial expenses, respectively.
The Company has recognized, in the Asset valuation adjustments account, the unrealized market value of derivative financial instruments classified as trading and available for sale securities. Gains and losses on financial instruments classified as held to maturity are taken to income for the period in accordance with the contract provisions, on the accrual basis.
(c) Current assets and long-term receivables
Cash and cash equivalents comprise primarily cash deposits and marketable securities or investments with immediate liquidity or maturing within 90 days (Note 4).
Marketable securities are valued at the lower of cost or market, including accrued income earned to the balance sheet date. Derivative instruments are valued at their adjusted fair values, based on market quotations for similar instruments against future exchange and interest rates. Financial instruments classified as held to maturity are restated in accordance with contractual provisions, on the accrual method of accounting.
The allowance for doubtful accounts is set up at an amount considered sufficient to cover estimated losses on the realization of the receivables, taking into account the Company's loss experience. For a better calculation of the doubtful accounts the Company analyzes, on a monthly basis, the amounts and characteristics of trade accounts receivable.
Inventories are stated at average purchase or production cost, which is lower than replacement cost or realization value. Finished products include freight expenses to the sale place. Imports in transit are stated at the accumulated cost of each import.
Inventories of consumable materials (Warehouse) are classified in current assets or long-term receivables, considering their history of consumption.
Deferred income tax is calculated on temporarily non-deductible tax losses and accounting expenses for the computation of current income tax. It is recognized to the extent that future taxable income is likely to be available to be offset against timing differences, based on projections of future results prepared and supported by internal assumptions and future economic scenarios which may not materialize. Periodically, the amounts recorded are revalued in accordance with CVM Deliberation 273/98 and CVM Instruction 371/02.
Other assets are shown at realizable values, including, where applicable, accrued income and monetary variations, or at cost in the case of prepaid expenses.
(d) Permanent assets
These assets are stated at restated cost, considering the following:
(e) Current and long-term liabilities
These liabilities are stated at known or estimated amounts, including accrued charges and monetary and exchange adjustments, as applicable.
The provision for loss in subsidiaries is recorded based on the negative shareholders equity (excess of liabilities over assets) of these companies, and is recorded as a long-term liability against the equity results.
Defined benefit pension plans are accounted for based on the calculations made by independent actuaries, which in turn are based on assumptions provided by the Company (Note 25).
A provision is recognized in the balance sheet when the Company has a legal or constructive obligation as a result of a past event, and it is probable that an outflow of economic benefits will be required to settle the obligation. Provisions are recorded considering the best estimates of the risk specific to the liability.
(f) Deferred income
Deferred income includes negative goodwill of merged or consolidated companies, supported by the expected future profitability.
Also, on an interim basis, tax incentives arising from income tax exemption or abatement are classified in this line, in accordance with CVM Instruction 469/08.
4 Cash and cash equivalents
The domestic investments are mainly represented by quotas of a Braskem exclusive fund (FIQ Sol). The financial investments abroad mainly consist of sovereign fixed income instruments or instruments issued by first-tier financial institutions with high marketability. These investments mature in up to 90 days.
5 Marketable securities - Long-term receivables
6 Trade accounts receivable
(*) Based on its turnover, part of the maintenance materials inventory was reclassified to noncurrent assets.
Advances to suppliers and expenditures for imports in transit mainly relate to the acquisition of petrochemical naphtha, which is the main raw material of the Company.
8 Related parties
(a) Parent company
(i) Trade accounts receivable includes R$ 20,950 arising from the transfer of ICMS credit balances;
(i) Includes exchange variation on trade accounts receivable.
The transactions between the Company and related parties are carried out at normal market prices and conditions, considering (i) for purchase and sale of ethylene, international market prices, and (ii) for purchases of naphtha from Petrobras, the European market prices, and (iii) for sales to foreign subsidiaries, a 180-day term, higher than terms offered to other customers. Until July 31, 2008, the Company also imported naphtha at a volume equal to 34% of its consumption.
9 Taxes recoverable
On December 19, 2002, the Federal Supreme Court (STF) - based on its full-bench precedents on this matter - entertained an extraordinary appeal lodged by the National Treasury and affirmed the erstwhile decision rendered by the Regional Federal Court (TRF), 4th Circuit, thus recognizing the entitlement of merged company OPP Química (OPP Química) units located in Rio Grande do Sul to the IPI credit on purchases taxed at a zero rate. STF decision ratified the entitlement to IPI credito n purchases carried out during the ten-year period prior to the filing date and accruing the SELIC benchmark rate until the date of actual use of such credits. The lawsuit had been filed in July 2000, when OPP Química pleaded the full adoption of the non-cumulative tax principle to said establishments.
The STF determination was challenged by the National Treasury via special appeal known as agravo regimental. In this special appeal, the National Treasury is no longer challenging the companys entitlement to the IPI tax credit from acquisition of raw materials taxed at a zero rate, but rather alleging some inaccuracies in the court determination as to non-taxed inputs and raw materials, the restatement of tax credits, and the respective calculation rate. According to the opinion of the Companys legal advisors, all these aspects have already been settled in the STF and TRF court decisions favorably to OPP Química, or even in the STF full-bench precedents. For this reason, the special appeal referred to above poses no risk of changes in the OPP Química-friendly decision, although STF itself having revisited its posture in a similar lawsuit lodged by another taxpayer.
In the light of the above mentioned aspects relating to the comprehensiveness of the National Treasury appeal, in December 2002, OPP Química posted these tax credits at R$ 1,030,125, which were offset by the Company with IPI itself and other federal tax debts. Such offset was completed in the first quarter of 2005.
In 2006 and 2007, the Federal Revenue Secretary drafted a number of assessment notices against the Company solely to avoid forfeiture of the tax authorities right to dispute the use of tax credits until ten years before the filing of a lawsuit by the Company and require the debit amounts offset by the Company against credits recorded after December 2002. Also, the Federal Revenue Secretary rejected approximately 200 applications for offsetting of these credits against taxes payable by the Company. The Company disputed these rejections and brought administrative and judicial claims which, in the opinion of its outside legal advisors, are likely to succeed.
Credits used by the Company, restated at the SELIC benchmark rate variation, amount to R$ 2,598,980 up to July 2008. Of these credits, the various collection procedures mentioned above add up to R$ 2,250,054, plus fines in the total amount of R$ 731,042. The Company external legal advisors believe that such fines are undue in any circumstances.
At a judgment session held on December 11, 2007, STFs First Panel accepted the Federal Governments agravo regimental, on the grounds that the extraordinary appeal should be reviewed, and thus overruled the previous court decision. The ruling that sets out the contents of the vote of the Ministers who took part in the judgment and related rationale has not been disclosed. Accordingly, Braskem is yet to lodge the appropriate appeals.
Based on these reasons and the understanding that the new ruling addresses mere procedural aspects, Braskem and its legal advisors continue to sustain that (i) the final decision granting the Company the IPI credit on the acquisition of raw materials that are either tax-exempt or taxed at a zero rate still prevails, (ii) the extraordinary appeal can only deal with matters which were the subject of agravo regimental and can no longer address the entitlement to IPI credits per se, as the lawsuit precludes the discussion of this specific topic.
Similar lawsuits have also been filed by the Company's branches located in the States of São Paulo, Bahia and Alagoas (Note 16(ii)).
The Company has accrued ICMS tax credits during the latest fiscal years, basically on account of taxation rate differences between incoming and outgoing inputs and products; domestic outgoing products under incentive (subject to deferred taxation); and export sales.
The Companys Management has given priority to a number of actions aimed at optimal use of such credits and, currently, no losses are expected from realization of those credits. Managements actions comprise, among others:
10 Deposits in court and compulsory loan
(a) Information on investments
(i) Investment stated under Other accounts payable and not in current liabilities.
(b) Investment changes in subsidiaries, jointly-controlled entities and associated companies
(i) The balance of investment and equity in the earnings of Copesul include the effect of the exclusion of unrealized profits from products purchased from that subsidiary, still held in Braskem inventories, of R$ 6,480 and (R$ 1,456), respectively.
(ii) Note 11 (c).
(iii) Goodwill amortization includes part of the amortization of future profitability in the amount of R$ 4,002 plus appreciation of property, plant and equipment of R$ 46,933.
In the financial statements, goodwill is stated under property, plant and equipment or deferred charges, while negative goodwill is stated under deferred income, in accordance with CVM Instruction 247/96.
(c) Acquisition of Ipiranga Química
In addition to the amount of R$ 1,489,129 (Note 1 b)), intended for the purchase of shares, the Company considered as part of the investment cost those expenses directly relating to the process, amounting to R$ 33,117. Considering all disbursements made, the Company recorded goodwill based on future profitability (R$ 68,597) and appreciation of property, plant and equipment (R$ 993,422) of Ipiranga Química and Copesul, respectively.
After the transfer of shares in February 2008 (Note 1(b)), the amounts disbursed under the transaction, plus equity in net income of subsidiaries and associated companies and amortization of goodwill, were reclassified to Investments in subsidiaries, with the following activity up to July 31, 2008:
(d) Petroquímica Paulínia
Petroquímica Paulínias plant started operations on April 25, 2008. The unit, with a production capacity of 350 thousand t/year polypropylene, is located at the municipality of Paulínia, state of São Paulo. The plant is considered pre-operational until production stabilizes.
Prior to March 2008, the control over this company was shared with Petroquisa. Following the merger of shares issued by Grust (Note 1(b)), Braskem now holds 100% of the voting capital of Paulínia.
12 Property, plant, equipment and Intangible assets
(*) Average annual depreciation and amortization rates.
At July 31, 2008, property, plant and equipment includes the appreciation, in the form of goodwill arising from the merger of subsidiaries, in the net amount of R$ 736,292.
13 Deferred charges
(i) Average annual amortization rates.
14 Loans and financing
(a) Project financing
In March and September 2005, the Company obtained loans in Japanese currency from Nippon Export and Investment Insurance ("NEXI"), in the amount of YEN 5,256,500 thousand - R$ 136,496, and YEN 6,628,200 thousand - R$ 141,529, respectively. The principal is payable in 11 installments as from March 2007, with final maturity in June 2012.
As part of its risk management policy (Note 21 (a)), the Company entered into a swap contract in the total amount of these loans, which, in effect, change the annual interest rate to 101.59% of CDI for the tranche drawn down in March, and 104.29% and 103.98% of CDI for the tranches drawn down in September 2005. The swap contract was signed with a leading foreign bank and its maturity, currencies, rates and amounts are perfectly matched to the financing contracts. The effect of this swap contract is recorded in financial results, under monetary variation of financing (Note 22).
(b) Repayment schedule
Long-term loans mature as follows:
The Company has provided securities for short- and long-term financing, as stated below:
In December 2006, the Company and Petroquisa, entered into a supporting agreement with BNDES, under which Braskem and Petroquisa undertake to provide, in proportion to their respective interests in the capital of Petroquímica Paulínia, the required funds to meet any insufficiencies arising from delinquency on the part of this company. Following the merger of shares of Grust (Note 1(c)) and consequent increase to 100% in the voting capital of this subsidiary, the Company assumed this full debt and may be required to disburse R$ 515.413 at the maximum to Petroquímica Paulínia, as capital contribution or loan.
(d) Capitalized interest
The Company adopts the accounting practice of capitalizing interest on financing during the period of asset construction. The Company policy is to apply the weighted average financial charge rate on the debt, including exchange variation, to the balance of projects in progress.
The average used during the period, including exchange variation, was 4.43% p.a. and the amounts capitalized are stated below:
(e) Loan covenants
Certain loan agreements entered into by the Company establish limits for a number or ratios relating to the ability to incur debts and pay interest. The ratios are as follows:
(*) EBITDA - Operating profit before financial results and shareholdings plus depreciation and amortization.
The above covenants are calculated on a consolidated basis for the past 12 months on a quarterly basis. Penalty for noncompliance is the potential acceleration of the debt. All commitments have been accomplished by the Company and its subsidiaries.
Composition of transactions:
(i) Public issues of Company non-convertible debentures.
16 Taxes and contributions payable - Long-term liabilities
The Company has brought suit in court against some changes in tax laws, and the updated amounts at dispute are duly accrued for. Therefore, no contingent assets are recorded.
(i) IPI tax credit on exports (Crédito-prêmio)
The Company - by itself and through absorbed companies - challenges the term of effectiveness of the IPI tax credit (crédito-prêmio) introduced by Decree-law 491 of 1969 as an incentive to manufactured product exports. Lower courts have granted most lawsuits to that end, but such favorable decisions may still be appealed.
In hearing the appeal lodged by another taxpayer seeking court recognition of its entitlement to use such tax benefit until present, the Superior Court of Justice (STJ) upheld its rejection to such prospective use and affirmed that the aforementioned tax benefit expired in 1990. As this it a constitution-related matter, the discussion was escalated to the Supreme Court of Justice (STF), which has already recognized and applied the general effect. STF will revisit the right to use those tax credits after 1990, based on the application of Temporary Constitutional Provisions Act (ADCT) 41.
According to its legal advisors, the Company stands reasonably possible chances of success in these suits.
(ii) IPI - Zero rate
Merged companies OPP Química, Trikem and Polialden have filed lawsuits claiming IPI tax credits from the acquisition of raw materials and inputs that are exempt, non-taxed or taxed at a zero rate. Lower courts have granted most lawsuits to that end.
In a decision rendered in February 2007 on a case unrelated to the Company, the STF found against the right to offset zero-rate IPI credits by a tight majority. In the same claim, in June 2007, the STF Full Bench decided, by majority opinion (6 vs. 5), that prospective-only effects could not be given to an STF decision that later reversed an erstwhile taxpayer-friendly determination made by the STF Full Bench itself. This ruling had a negative bearing on judgment of the cases involving merged companies OPP Química and Trikem in Bahia, leading to payments in the amount of R$ 127,317 (August 2007). By the same token, a portion of the amount underlying the lawsuit involving merged company Polialden (R$ 99,641) was settled in October 2007. The outstanding value relating to such case will be challenged in court.
The Company still enjoys a favorable court decision on the lawsuit lodged by its merged company Trikem in Alagoas, allowing the Company to use these tax credits. The Company will have to pay out the offset sums when the court decision on this case is reversed. It should be stressed that all of these amounts have been provisioned for, which will avoid an adverse impact on the Companys results.
(iii) PIS/COFINS - Laws 9718 of 1998
The Company - by itself and through absorbed companies - has brought a number of lawsuits to challenge the constitutionality of the changes in the PIS and COFINS tax bases deriving from Law 9718 of 1998.
In November 2005, the STF Full Bench had definitively ruled that the increase in PIS and COFINS tax basis under such law was unconstitutional. At the same time, STF ruled that the COFINS rate increase from 2% to 3% was constitutional.
As the Company external legal advisors believe that the chances of a successful outcome are remote on this matter and in the light of the recent STF unfavorable decision, the Company filed for voluntary dismissal of this claim in most suits and settled the debt in cash on December 15, 2006. The Company, however, still discusses the matter in a small number of claims.
(iv) Special Installment Program - PAES - Law 10684 of 2003
In August 2003, merged company Trikem opted to file for voluntary dismissal of its lawsuit against the COFINS rate increase from 2% to 3% under Law 9718 of 1998, thus qualifying for the more favorable payment conditions under the PAES program instituted by Federal Law 10684 of 2003. The amount due is being paid in 120 monthly installments. At July 31, 2008, the outstanding debt is R$ 31,711, being R$ 4,916 in current liabilities and R$ 26,765 in noncurrent liabilities.
Even though the Company had met all legal requirements and payments were being made as and when due, the National Treasury Attorneys Office (PFN) disqualified the Company for PAES on two different occasions, and the Company obtained a court relief reinstating it to PAES in these two events. In reliance on the opinion of its legal advisors, Management believes that the Companys eligibility for these installment payments will be upheld as originally requested.
17 Income and social contribution taxes
(a) Current income tax
Out of the income tax expense, R$ 5,507 is entitled to income tax exemption/abatement.
(b) Deferred income tax
(i) Composition of deferred income tax
In accordance with the provisions of CVM Deliberation 273/98, which approved the Institute of Independent Auditors of Brazil (IBRACON) standards on the accounting of income tax, supplemented by CVM Instruction 371/02, the Company has the following accounting balances of deferred income tax:
Composition of calculated deferred income tax:
Deferred income tax assets arising from tax losses and temporary differences are recorded taking into account analyses of future tax profits, supported by studies prepared based on internal and external assumptions and current macroeconomic and business scenarios approved by Company's management.
(c) Social Contribution on Income (CSL)
In view of the discussions over the constitutionality of Law 7689 of 1988, the Company and its absorbed companies OPP Química, Trikem and Polialden filed civil lawsuits against payment of CSL. The resulting court decision favorable to these companies became final and conclusive.
However, the Federal Government filed a suit on the judgment (ação rescisória) challenging the decisions on the lawsuits filed by the Company, Trikem and Polialden, on the argument that - after the final decision favorable to those companies - the Full Bench of STF declared the constitutionality of this tax except for 1988. As the Federal Government did not file a suit on the judgment in the case of OPP Química, the first final and conclusive decision remained in force.
The suit on the judgment is pending the STJ and STF review of a number of appeals concerning this specific matter. Even though the suit on the judgment and tax payments are still on hold, the Federal Revenue Office has issued tax infraction notices against the Company and its absorbed companies, and administrative defenses have been filed against such notices.
Based on the opinion of its legal advisors, Management believes that the following is likely to occur: (i) the courts will eventually release the Company from paying this tax; and (ii) even if the suit on the judgment is held invalid, the effects of said judgment cannot retroact to the year of enactment of the law, the reason why the Company has created no provisions for this tax.
If retrospective collection is required by court order (contrary to the opinion of its legal advisors), the Company believes that the possibility of being imposed a fine is remote. Accordingly, the amount payable, restated for inflation and accruing Brazils SELIC benchmark rate, would be approximately R$ 850,000, net of fine.
18 Tax incentives (a) Income tax
To 2011, the Company is entitled to reduce by 75% the income tax on the profit arising from the sale of basic petrochemical products and utilities produced at the Camaçari plant. The three polyethylene plants at Camaçari have the same right up to base years 2011, 2012 and 2016. The PVC plant at Camaçari also has this right up to base year 2013. The PVC plants in Alagoas and the PET plant at Camaçari are exempt from corporate income tax on the results of their industrial operations until 2008.
Productions of caustic soda, chloride, ethylene dichloride and caprolactam enjoy the benefit of the 75% decrease in the income tax rate up to 2012.
Until December 2007, the income tax amount covered by the incentive was recorded as expense for the year, as a contra entry to a specific capital reserve account. Law 11638/07 revoked the article of Law 6404/76 that classified such incentive as a capital reserve. Pursuant to CVM Instruction 469, issued on May 2, 2008, these incentives should be temporarily recorded as deferred income.
(b) Value-added tax - ICMS
The Company has ICMS tax incentives granted by the States of Rio Grande do Sul and Alagoas, through the Company Operation Fund - FUNDOPEM and State of Alagoas Integrated Development Program - PRODESIN, respectively. Such incentives are designed to foster the installation and expansion of industrial facilities in those States. The incentive is stated in income for the year, under Other operating income. The incentive determined for the period ended July 31, 2008 was R$ 683.
19 Shareholders equity
At July 31, 2008, the Companys subscribed and paid-up capital is R$ 5,361,656, divided into 522,885,593 shares with no pr value, comprising 196,714,190 common, 325,368,337 class A preferred, and 803,066 class B preferred shares. At the same date, the Companys authorized capital comprises 488,000,000 shares, of which 175,680,000 are common, 307,440,000 are class A preferred, and 4,880,000 are class B preferred shares.
At the Extraordinary Shareholders Meeting held on May 30, 2008, a capital increase was approved, as a result of the merger of Grust shares (Note 1(b)), through the issue of 46,903,320 common and 43,144,662 class A preferred shares. As such, the Companys capital went from R$ 4,640,947 to R$ 5,361,656.
(b) Rights attaching to shares
Preferred shares carry no voting rights, but qualify for a non-cumulative priority dividend at 6% per annum on their unit value, if profits are available for distribution. Only Class A preferred shares are on a par with common shares for entitlement to remaining profits; dividends are earmarked to common shares only after the priority dividend has been paid to preferred shares. Further, only Class A preferred shares rank equally with common shares in the distribution of shares resulting from capitalization of other reserves. Only Class A preferred shares are convertible into common shares, by resolution of the majority voting stock at general meetings. Class B preferred shares may be converted into Class A preferred shares at a ratio of two Class B preferred shares to each Class A preferred share, upon written notice to the Company at any time (after expiration of the non-convertibility period prescribed in special legislation that authorized the issuance and payment of such shares by using tax incentive funds.
If the Company is wound up, Class A and B preferred shares are accorded priority treatment in repayment of capital.
The shareholders are entitled to a minimum compulsory dividend at 25% of the net profits at yearend, adjusted as per the Brazilian Corporation Law.
According to the Memorandums of Understanding for Execution of Shareholders Agreement, the Company is required to distribute dividends not lower than 50% of the yearend net profits, to the extent that the reserves necessary for its effective operation in the ordinary course of business are maintained at a sufficient level.
As agreed at the time of issuance of Medium-Term Notes, the payment of dividends or interest on equity is capped at twofold the minimum dividends accorded to preferred shares under the Companys bylaws.
(c) Treasury shares
At July 31, 2008, shares held in treasury comprised 8,886,457 shares, comprising 6,251,744 common, 2,425,465 class A preferred, and 209,048 class B preferred shares, for the total value of R$ 120,037. The total value of these shares, based on the average quotation of Bovespas session of June 30, 2008, is R$ 122,811. These shares arise from the following events:
(d) Appropriation of net income
The Shareholders Annual Meeting held on March 26, 2008 approved the appropriation of net income for year 2007, totaling R$ 543,220, as follows: (i) R$ 278,457 as dividends for common, and classes A and B preferred shares, at the ratio of R$ 0.644 per share; (ii) R$ 27,161 to the legal reserve, and (iii) R$ 237,602 to the profits for expansion reserve.
(a) Collective Bargaining Agreement - Section 4
The Petrochemical, Plastics, Chemicals and Related Industry Workers Union in the State of Bahia (SINDIQUÍMICA) and the Employers Association of the Petrochemical and Synthetic Resins Industries in the State of Bahia (SINPEQ) are disputing in court the validity of a wage and salary indexation clause contained in the collective bargaining agreement (convenção coletiva de trabalho), given the matter of public policy involved, namely, the adoption of an economic stabilization plan in 1990 that put a limit on wage adjustments. The Company ran plants in the region in 1990, and is a member of SINPEQ.
The employees labor union seeks retrospective adjustment of wages and salaries. In December 2002, the STF affirmed an erstwhile decision from the Superior Labor Court (TST), determining that an economic policy legislation should prevail over collective bargaining agreements and, as such, no adjustment was due. In 2003, SINDIQUÍMICA appealed this decision by means of a motion for clarification, which was rejected by unanimous opinion on May 31, 2005.
On October 24, 2005, SINDIQUÍMICA filed a plea known as embargos de divergência. This plea was forwarded to the General Prosecutor Office of the Republic, which rendered an opinion fully favorable to SINPEQ in November 2006. Judgment on this appeal started on June 28, 2007, but was adjourned as one of the judges asked for further access to the case docket.
In reliance on the opinion of its legal advisors, Management believes that SINPEQ is likely to prevail in this suit and, as such, no amount was provisioned for.
(b) Offsetting of tax credits
From May through October 2000, absorbed companies OPP Química and Trikem offset their own federal tax debts with IPI tax credits (créditos-prêmio) assigned by an export trading company (Assignor). These offsetting procedures were recognized by the São Paulo tax officials (DERAT/SP) through offset supporting certificates (DCCs) issued in response to an injunctive relief entered in a motion for writ of mandamus (MS SP). Assignor also filed a motion for writ of mandamus against the Rio de Janeiro tax officials (DERAT/RJ) (MS RJ) for recovery of IPI tax credits and their use for offsetting with third-party tax debts, among others. The MS SP was dismissed without prejudice, confirming the Rio de Janeiro administrative and jurisdictional authority to rule on Assignors tax credits.
In June 2005, DERAT/SP issued ordinances (portarias) canceling the DCCs. Based on said ordinances, the Federal Revenue Office unit in Camaçari/BA sent collection letters to the Company. Notices of dispute were presented by the Company, but the administrative authorities declined to process them. As a result, past-due federal tax liabilities (dívida ativa) at R$ 276,620 were posted in December 2005 concerning the Companys tax debts originating from purportedly undue offsetting procedures.
Both Assignor and the Company commenced a number of judicial and administrative proceedings to defend the lawfulness and validity of those offsetting procedures, and the legal counsels to both companies labeled the likelihood of success in those cases as probable, mostly in light of the indisputable certainty and validity of those credits as confirmed in a specific audit conducted by DERAT/RJ.
On October 3, 2005, the Federal Supreme Court (STF) held the MS RJ favorably to Assignor in a final and conclusive manner, confirming Assignors definite right to use the IPI tax credits from all its exports and their availability for offsetting with third-party debts. As a result, the legal advisors to Assignor and to the Company believe that the offsetting procedures carried out by the absorbed companies and duly recognized by DERAT/SP are confirmed, and for this reason they also hold that the tax liabilities being imputed to the Company are not due. Despite the final and conclusive decision in MS RJ, the legal advisors to Assignor and to the Company, in addition to a jurist when inquired of his opinion on this specific issue, feel that the tax liabilities purportedly related to offsetting procedures carried out by the absorbed companies have become time-barred and, as such, can no longer be claimed by the tax authorities.
In January 2006, the Company was ordered to post bond in aid of execution of the tax claim referred to above; this bond was tendered in the form of an insurance policy.
The Companys legal advisors have labeled the likelihood of success in all claims listed above as probable; nevertheless, if the Company is eventually defeated in all those cases, it will be entitled to full recourse against Assignor concerning all amounts paid to the National Treasury, as per the assignment agreement executed in 2000.
(c) National Social Security Institute - INSS
The Company is party to several social security disputes in the administrative and judicial spheres, totaling R$ 347,176 (updated by the SELIC rate) as of July 31, 2008.
In reliance on the legal advisors opinion that the Company stands good chances of success in these cases, Management believes that no sum is payable in connection with these notices and, as such, no amount was provisioned for.
(d) Other court disputes involving the Company and its subsidiaries
21 Financial Instruments
(a) Risk management
Since the Company operates in the domestic and international markets, obtaining funds for its operations and investments, it is exposed to market risks mainly arising from changes in the foreign exchange and interest rates, and commodities.
The Companys policy to manage risks has been approved and reviewed by management. These rules prohibit speculative trading and selling short, and provide for the diversification of instruments and counterparties. Counterparties limits and creditworthiness are reassessed on a regular basis and set up in accordance with rules approved by management. Gains and losses on hedge transactions are taken to income on a monthly basis. Adjustments of these instruments to market value are recorded in Asset Valuation adjustment, under shareholders equity, before being taken to income for the period.
To cover the exposure to market risk, the Company utilizes various types of currency hedges, some involving the use of cash and others not. The most common types which use cash, as adopted by the Company, are financial investments abroad (certificates of deposit, securities in U.S. dollars, investment funds, among other instruments) in U.S. dollars. The forms of currency hedge which do not involve the use of cash are swaps, forwards and options.
To hedge its exposure to exchange and interest risks arising from loan and financing agreements, the Company adopted the following methodology: hedging of the principal and interest falling due in the next 12 months in, at least (i) 60% of the debt linked to exports (trade finance), except for Advances on Exchange Contracts (ACCs) of up to six months and Advances on Export Contracts (ACEs); and (ii) 75% of the debt not linked to exports (non-trade finance).
(b) Exposure to foreign exchange risks
The Company has long-term loans and financing to finance its operations, including cash flows and project financing. Part of the long-term loans is linked to foreign currencies (Note 14).
(c) Exposure to interest rate risks
The Company is exposed to interest rate risks on its debt. The debt in foreign currency, bearing floating interest rates, is mainly subject to LIBOR variation, while the domestic debt, bearing floating interest rates, is mainly subject to fluctuations in the Long-term Interest Rate (TJLP) and the Interbank Deposit Certificate (CDI) rate.
(d) Exposure to commodities risks
The Company is exposed to fluctuations in the price of several petrochemical commodities, especially its main raw material, naphtha. Since the Company seeks to transfer to its own selling prices the effect of price changes in its raw material, arising from changes in the naphtha international quotation, part of its sales may be carried out under fixed-price contracts or contracts stating maximum and/or minimum fluctuation ranges. Such contracts are commercial agreements or derivative contracts relating to future sales.
(e) Exposure to credit risks
The operations that subject the Company to concentration of credit risk are mainly bank accounts, financial investments and other accounts receivable, exposing Braskem to the risk of the financial institution involved. In order to manage the credit risk, the Company keeps its bank accounts and financial investments with large financial institutions.
In relation to customer credit risk, the Company protects itself by performing detailed analyses before granting credit and by obtaining real and personal guarantees, when necessary.
(f) Derivative instrument transactions
To determine the estimated market value of financial instruments, the Company uses transaction quotations or public information available in the financial market, as well as valuation methodologies generally accepted and utilized by counterparties. These estimates do not necessarily guarantee that such operations could be realized in the market at the indicated amounts. The use of different market information and/or valuation methodologies could have a significant effect on the estimated market value.
22 Financial Income (Expenses)
23 Non-operating income (Expenses)
Non-operating income (expenses) for the seven-month period ended July 2008 includes R$ 252,105 relating to the disposal of the investment in Petroflex (Note 1(b)), net of the investment cost of R$ 121,557, and including the effects of income in the earnings of subsidiary and associated companies up to March 31, 2008.
24 Insurance coverage
The Company has a broadly-based risk management program designed to provide cover and protection for all assets, as well as possible losses caused by production stoppages, through an "all risks" insurance policy. This policy establishes the amount for maximum probable damage, considered sufficient to cover possible losses, taking into account the nature of the Companys activities and the advice of insurance consultants. At July 31, 2008, amounts insured are as follows:
Additionally, the Company has transportation, group life, sundry risks and vehicle insurance policies. The risk assumptions adopted are not part of the scope of the audit and, as such, were not examined by our independent auditors.
25 Private pension plans
The actuarial obligations relating to the pension and retirement plans are accrued in conformity with the procedures established by CVM Deliberation 371/2000.
The Company has a defined-contribution plan for its employees. The plan is managed by ODEPREV - Odebrecht Previdência which was set up by Odebrecht S.A. as a closed private pension entity. ODEPREV offers its participants, employees of the sponsoring companies, the Optional Plan, a defined-contribution plan, under which monthly and sporadic participant contributions and annual and monthly sponsor contributions are accumulated and managed in individual retirement savings accounts.
At July 31, 2008, the active participants in ODEPREV amounted to 2,551 (Jul/07 - 2,536), and the Companys contributions in the first half of 2008 amounted to R$ 6.695 (first half of 2007 - R$ 3.129) and R$ 10,624 (first half of 2007 - R$ 8,893).
26 Raw material purchase commitments
The Company has contracts for consumption of electric energy for its industrial plants located in the States of Alagoas, Bahia and Rio Grande do Sul. The minimum commitment for consumption under these four-year contracts amounts to R$ 725,895.
Braskem purchases naphtha and condensate under contracts establishing a minimum annual purchase volume equal to R$ 3,194,486, based on market prices as of July 31, 2008.
27 Law 11638/07 - Changes in the Brazilian Corporation Law
Law 11638, enacted on December 28, 2007, introduced a number of provisions and amended other provisions of Law 6404 (Brazilian Corporation Law). The Law is mainly intended to update the Brazilian Corporate law in order to harmonize accounting practices adopted in Brazil with international accounting standards issued by International Accounting Standard Board (IASB). Such changes should be applied to financial statements for the end of fiscal year initiated on January 1, 2008.
Although the above mentioned Law is already effective, the application by companies of certain changes introduced by it depends on rules to be issued by the regulatory agencies. Accordingly, the interim financial statements as of July 31, 2008 were prepared in accordance with specific CVM instructions and do not give effect to all changes in accounting practices established by Law 11638/07.
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: October 09, 2008
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 a ctually 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.