EXHIBIT 2
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▇▇▇▇ CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
November 28, 2002
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
Dear Sir:
The purpose of this letter agreement (this "Agreement") is to set
forth the agreement and understanding between ▇▇▇▇ Corporation ("▇▇▇▇"), a
Delaware corporation and wholly-owned subsidiary of Leucadia National
Corporation ("Leucadia"), a New York corporation, and ▇▇. ▇▇▇▇▇▇▇ ▇. Elsztain,
an individual ("Holder"), with respect to certain of the units ("Units")
acquired by ▇▇▇▇ on November 20, 2002 (the "Issuance Date") in the Rights
Offering by Cresud Sociedad Anonima Comercial, Inmobiliaria, Financiera y
Agropecuaria ("Cresud") for 50,000,000 Units, each consisting of US$1.00
principal amount of Cresud's 8% Convertible Notes due 2007 (each, a "Note") and
one non-detachable warrant to purchase shares of Cresud's common stock ("Common
Stock").
In consideration of the premises and agreements herein set forth, the
payment by the Holder to ▇▇▇▇ of ten dollars ($10.00), and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is our mutual agreement and understanding that:
1. Subject to the terms and conditions set forth herein, at any time
from and after January 20, 2003 up to and including November 7, 2007 (the
"Exercise Period"), the Holder shall have the one-time right (the "Call Right")
to require ▇▇▇▇ to sell to the Holder 1,000,000 Units (the "Option Units")
representing 10% of the total number of Units acquired by ▇▇▇▇ on the Issuance
Date, at a purchase price per Unit equal to the sum of (i) the price per Unit
paid by ▇▇▇▇ for such Units on the Issuance Date (US$1.00) and (ii) the amount
of accrued and unpaid interest on each Note included in such Units through and
including the date of closing pursuant to paragraph 2 hereof (the "Purchase
Price"), it being understood that the Holder shall not be entitled to any
interest on the Notes that has accrued and been paid to ▇▇▇▇ prior to exercise
of the Call Right. The Call Right shall be exercisable in whole or in part, and
shall terminate with respect to the Option Units and be of no further force and
effect, upon the earliest to occur of: (i) the conversion to Common Stock of all
of the Notes included in the Option Units in accordance with the provisions of
this Agreement, (ii) the expiration of the Exercise Period, or (iii) the sale,
transfer or disposition of Option Units by ▇▇▇▇ in accordance with the
provisions of this Agreement.
2. The Holder shall exercise the Call Right by delivering to Leucadia
written notice (the "Call Notice") of such exercise of the Call Right no later
than five (5) business days prior to the expiration of the Exercise Period,
specifying the number of Units the Holder desires to purchase not to exceed
1,000,000 Units (the "Call Units"). The closing of the sale of the Call Units to
the Holder pursuant to the exercise of the Call Right shall take place at the
offices of Leucadia no later than the fifth (5th) business day following
delivery of the Call Notice or at such other time and place as mutually agreed
by ▇▇▇▇ and the Holder (but in no event later than the last day of the Exercise
Period). At such closing, (i) ▇▇▇▇ shall deliver to the Holder the certificates
and other documentation, if any, representing the Call Units in proper form for
transfer and (ii) the Holder shall deliver to ▇▇▇▇ an amount in United States
dollars equal to the Purchase Price per Unit times the Call Units by wire
transfer of immediately available funds to an account designated by ▇▇▇▇ not
less than one (1) business day prior to such closing.
3. ▇▇▇▇ shall be permitted to exercise its right to convert the Notes
into shares of Common Stock, or sell, transfer or otherwise dispose of Units,
without notice to the Holder; provided, however, that if ▇▇▇▇ proposes (i) to
convert Notes into Common Stock or (ii) to sell, transfer or otherwise dispose
of Units, which when aggregated with all previous Note conversions and sales,
transfers or other dispositions of Units by ▇▇▇▇ since the Issuance Date would
result in ▇▇▇▇ beneficially owning less than 10% of the Units acquired by ▇▇▇▇
on the Issuance Date, ▇▇▇▇ shall give the Holder ten (10) days written notice
("Sale Notice") prior to converting any of the remaining Notes or selling,
transferring or otherwise disposing of any of the remaining Units. If the Holder
desires to exercise his Call Right, in whole or in part, the Holder shall
deliver the Call Notice to ▇▇▇▇, within ten (10) days after the date of delivery
of the Sale Notice by ▇▇▇▇, advising ▇▇▇▇ that the Holder is exercising his Call
Right, in whole or in part, and specifying the number of Call Units. Failure to
deliver the Call Notice within such ten (10) day period shall be deemed a
determination by the Holder not to exercise his Call Right and a waiver of such
right. If the conversion, sale, transfer or disposition contemplated by the Sale
Notice is not consummated by ▇▇▇▇, in whole or in part, within thirty (30) days
thereafter, then the restrictions and requirements provided for in this
paragraph shall again become effective and ▇▇▇▇ may not convert such Notes or
sell, transfer or otherwise dispose of such Units without again complying with
the requirements of this paragraph. Notwithstanding the forgoing, the provisions
of this paragraph 3 shall not operate as an extension of the Exercise Period as
defined herein.
4. All stock transfer, documentary, stamp, recording or other similar
taxes applicable to the transfer of the Call Units shall be paid by the Holder.
5. This Agreement and the rights and obligations hereunder shall not
be assignable or transferable by ▇▇▇▇ or the Holder without the prior written
consent of the other party hereto; provided, however, ▇▇▇▇ shall be permitted to
assign or transfer all rights and obligations hereunder to an affiliate without
the prior written consent of the Holder so long as the affiliate agrees to be
bound by the provisions hereof; and provided, further, the Holder shall be
permitted to assign or transfer all rights and obligations hereunder to an
affiliate, including, but not limited, to Inversiones Financieras del Sur S.A.,
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without the prior written consent of ▇▇▇▇ so long as the affiliate agrees to be
bound by the provisions hereof. Any attempted assignment in violation of this
paragraph shall be null and void.
6. The Holder hereby acknowledges that each of the Boards of
Directors of Cresud and Inversiones Financieras del Sur S.A., its parent
company, have approved the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
7. All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent by
facsimile or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when received, as
follows:
If to ▇▇▇▇:
▇▇▇▇ Corporation
c/o Leucadia National Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: President
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holder:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇(▇▇▇▇▇▇)
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Telecopy: (5411) 4323 7596
With copy to:
▇▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇(▇▇▇▇▇▇)
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Telecopy: (5411) 4322 6970
8. This Agreement shall be governed and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
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9. If any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. The parties shall thereafter negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties
hereto as closely as possible to the fullest extent permitted by applicable law.
10. Each party irrevocably submits to the exclusive jurisdiction of
(a) the Supreme Court of the State of New York, New York County, and (b) the
United States District Court for the Southern District of New York, solely for
the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each party agrees to commence
any such action, suit or proceeding in the United States District Court for the
Southern District of New York or if such suit, action or proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the
State of New York, New York County. Each party further agrees that service of
any process, summons, notice or document by U.S. registered mail to such party
shall be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction in
this paragraph. Each party irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (i) the Supreme Court of
the State of New York, New York County, or (ii) the United States District Court
for the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
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11. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same instrument.
Please sign in the appropriate space below to indicate your agreement
with the foregoing.
Very truly yours,
▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice-President
Accepted and Agreed as of the date first written above:
/s/ ▇▇▇▇▇▇▇ ▇. Elsztain
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Name: ▇▇▇▇▇▇▇ ▇. Elsztain
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