Contract
EXHIBIT
99.D
AMENDMENT
(the
“Amendment”),
dated
as of October 16, 2008, to the Purchase Agreement, dated as of October 1,
2008
(as modified pursuant to the terms of this Amendment, the “Purchase
Agreement”)
by and
among (i) Cosan Limited, a Bermuda exempted company (the “Company”),
having its principal office at Av. Presidente Xxxxxxxxx Xxxxxxxxxx 1726,
6th
floor,
São Paulo, SP, Brazil 04543-000, (ii) GIF Venus, Ltd, a Cayman Islands company,
having its principal office at XX Xxx, 000, Xxxxxx Xxxxx, Xxxxx Xxxxxx,
XX0-0000, Cayman Islands (“GIF”),
(iii)
Bradseg Fundo de Investimento Multimercado, an investment fund organized
in
accordance with the laws of the Federative Republic of Brazil (“Brazil”),
having its principal office at Cidade de Deus, Prédio Novíssimo, 4th
Floor,
Osasco, SP, Brazil (“Bradseg”
and,
together with GIF, the “Purchasers”),
and
(iv) Rubens Ometto Xxxxxxxx Xxxxx, a Brazilian individual, with his business
office at Av. Presidente Xxxxxxxxx Xxxxxxxxxx 1726, 6th
floor,
São Paulo, SP, Brazil 04543-000 (together with any legal entity under his direct
or indirect control, the “Principal
Shareholder”).
Capitalized terms not defined in this Amendment shall have the meaning ascribed
to them in the Purchase Agreement.
WHEREAS
the Company, the Purchasers and the Principal Shareholder entered into the
Purchase Agreement for the sale of Class A Common Stock;
WHEREAS
the Company, the Purchasers and the Principal Shareholder wish to amend certain
provisions of the Purchase Agreement;
NOW,
THEREFORE, it is agreed as follows:
1.
Amendment
to Section 3.
Section
3 of the Purchase Agreement is hereby amended and restated as
follows:
“3. Agreement
to Sell and Purchase.
(a) On
the basis of the representations and warranties contained in this Agreement,
and
subject to its terms and conditions, the Company hereby agrees: (i)(x) to
sell
to GIF, and GIF agrees to purchase from the Company, at the purchase price
of
US$4.50 per share (the “Purchase
Price”),
12,666,666 shares of Class A Common Stock (the “Initial
Shares”)
and
(y) to sell to Bradseg, and Bradseg agrees to purchase from the Company,
at the
Purchase Price, 666,667 shares of Class A Common Stock in the form of BDRs
(the
“Initial
BDRs”
and,
together with the Initial Shares, the “Initial
Securities”)
and
(ii) (x) to sell to GIF, and GIF agrees to purchase from the Company, at
the
Purchase Price, 19,000,000 shares of Class A Common Stock (the “Additional
Shares”)
and
(y) to sell to Bradseg, and Bradseg agrees to purchase from the Company,
at the
Purchase Price, 1,000,000 shares of Class A Common Stock in the form of BDRs
(the “Additional
BDRs”
and,
together with the Additional Shares, the “Additional
Securities”).
The
allocation between Additional Shares and Additional BDRs may be modified
to the
extent agreed to by the Purchasers and the Company.
(b) The
aggregate number of Additional Shares and Additional BDRs to be sold by the
Company and purchased by GIF and Bradseg, respectively, shall be reduced
on a
share-for-share basis to the extent that Participating Shareholders (other
than
the Principal Shareholder) exercise their Preemptive Rights Option in excess
of
10,132,378 shares of Class A Common Stock (including Class A Common Stock
in the
form of BDRs). The actual number of Additional Shares and Additional BDRs
to be
purchased by GIF and Bradseg, respectively, is subject to the number of Class
A
Common Stock, including Class A Common Stock in the form of BDRs, subscribed
by
Participating Shareholders who exercise the Preemptive Rights Option, subject
to
the preceding sentence.
(c) If
the
Participating Shareholders (other than the Principal Shareholder) exercise
the
Preemptive Rights Option on or prior to the Preemptive Rights Option Exercise
Date for more than 10,132,378 shares of Class A Common Stock, including Class
A
Common Stock in the form of BDRs, then the Company will issue the maximum
aggregate amount of 54,576,822 shares of Class A Common Stock. If no
Participating Shareholder (other than the Principal Shareholder) exercises
the
Preemptive Rights Option on or prior to the Preemptive Rights Option Exercise
Date, then the Company will issue the aggregate amount of 44,444,444 shares
of
Class A Common Stock.
(d) The
shares of Class A Common Stock purchased by GIF in accordance with this Section
3 are referred to herein as the “Class
A Shares”,
the
shares of Class A Common Stock in the form of BDRs purchased by Bradseg in
accordance with this Section 3 are referred to herein as the “BDR
Shares”
and
the
Class A Shares and BDR Shares are referred to herein collectively as the
“Shares.”
2.
Amendment
to Section 4.
The
first paragraph of Section 4 of the Purchase Agreement is hereby amended
and
restated as follows:
“4.
Payment
and Delivery.
Payment
for the Initial Securities shall be made by the Purchasers to the Company
in
Federal or other funds immediately available in New York City against delivery
of such Initial Securities at 10:00 a.m., New York City time, on October
20,
2008 (the “Initial
Closing Date”).
Payment for the Additional Securities shall be made by the Purchasers to
the
Company in Federal or other funds immediately available in New York City
against
delivery of such Additional Securities (such payment and delivery hereinafter
referred to as the “Closing”)
at
10:00 a.m., New York City time, on October 27, 2008 or at such other time
on the
same or such other date, not later than November 3, 2008, as shall be agreed
by
the Company and the Purchasers. The time and date of payment for such Additional
Securities are hereinafter referred to as the “Closing
Date.”
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3.
Conditions
of Obligations.
The
Purchasers and the Company hereby irrevocably agree to waive any and all
conditions for the issuance and purchase of the Initial Securities on the
Initial Closing Date set forth in Sections 5 and 6 of the Purchase Agreement
except with respect to clauses (b), (c) (f) and (g) of Section 5 for the
Company
and clauses (b), (c), (e), (h) and (j) of Section 6 for the Purchasers. The
certificates to be delivered pursuant to Section 5(f) and Section 6(e) of
the
Purchase Agreement on the Initial Closing Date shall certify that the condition
set forth in Section 5(c) and Section 6(c), respectively, have been satisfied
as
of the Initial Closing Date.
If
the
Participating Shareholders (other than the Principal Shareholder) exercise
the
Preemptive Rights Option on or prior to the Preemptive Rights Option Exercise
Date for 31,132,378 shares of Class A Common Stock, including Class A Common
Stock in the form of BDRs, notwithstanding the number of Additional Securities
being then reduced to zero, the Company will comply with the conditions set
forth in Sections 6(g) and (i) of the Purchase Agreement on the Closing
Date.
4.
Amendment
to Section 9.
Section
9 of the Purchase Agreement is hereby amended and restated as
follows:
“9.
Subscription of Shares by the Principal Shareholder. The
Principal Shareholder shall
subscribe to 11,111,111 shares of Class A Common Stock at the Purchase Price
(the “Principal
Shareholder Shares”).”
5. Full
Force and Effect of Purchase Agreement.
The
Purchase Agreement, except as amended by this Amendment, is and shall continue
to be in full force and effect and is hereby in all respects ratified and
confirmed. From and after the date of this Amendment all references in the
Purchase Agreement to the Purchase Agreement shall be deemed to be a reference
to the Purchase Agreement as modified, pursuant to the terms of this
Amendment.
6. Counterparts.
This
Amendment may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
7. Applicable
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of New York.
3
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date
first
written above.
| GIF VENUS, LTD | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxx Xxxxx | |
|
Name: Xxxx
Xxxxxxxx Xxxxx
Title:
Director
|
||
| BRADSEG FUNDO DE INVESTIMENTO MULTIMERCADO | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxx Xxxxx | |
|
Name: Xxxx
Xxxxxxxx Xxxxx
Title:
Director
|
||
4
Agreed
to
and Accepted by:
| COSAN LIMITED | ||
| |
|
|
| By: | /s/ Rubens Ometto Xxxxxxxx Xxxxx | |
|
Name: Rubens
Ometto Xxxxxxxx Xxxxx
Title: Chief
Executive Officer
|
||
| By: | /s/ Paulo Xxxxxx xx Xxxxxxxx Diniz | |
|
Name: Paulo
Xxxxxx xx Xxxxxxxx Xxxxx
Title: Chief
Financial Office
|
||
| RUBENS OMETTO XXXXXXXX XXXXX | ||
| |
|
|
| By: | /s/ Rubens Ometto Xxxxxxxx Xxxxx | |
|
|
||
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