SHARE PURCHASE AND SALE AGREEMENT
Exhibit 10.14
EXECUTION COPY
By this private instrument, the parties, on the one hand:
(a) ADECO BRASIL PARTICIPACÕES LTDA., a Brazilian limitada with principal place of business
in the City of São Paulo, State of São Paulo, at Xxx Xxx Xxxxxxx, 000, Xxxx 13, Zip Code 01508-001,
enrolled in the National Registry of Legal Entities (“C.N.P.J.”) under No. 07.835.579/0001-51,
herein represented by its legal representative, Xx. Xxxxxxxx Xxxx Xxxxxxx, Argentine, engineer,
married, resident and domiciled in the City of Brasilia, Distrito Federal, at SHIS QI 29, Conjunto
14, Casa 21, Lago Sul, enrolled with CPF/MF under No 000.000.000-00 and bearer of Foreigner
Identity Card (RNE) No. V391119-H (hereinafter referred to
as “Purchaser”);
on the other hand,
(b) XXXXXXX XXXXXXX XXXXXXX XXXXXX, Brazilian, married, resident and domiciled in
the City of Xxxxx Xxxx, State of Minas Gerais, at Fazenda Xxxxx Xxxx, enrolled with CPF/MF under No
000.000.000-00 and bearer of Identity Card
(RG) No. M-6.219.870 SSP/MG (“Xxxxxxx Xxxxxx”);
(c) PAULO XXXXXX XXXXXXX XXXXXX, Brazilian, single, resident and domiciled in the City of
Rio de Janeiro, State of Rio de Janeiro, at Av. Presidente Xxxxxx 231, 18th floor,
enrolled with CPF/MF under No 000.000.000-00 and bearer of Identity Card (RG) No. 6.734.039-8 IFP/RJ
(“Xxxxx Xxxxxx”);
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(d)
MÁRIO XXXXX XX XXXXX XXXXXX, Brazilian, married, resident and domiciled in the City of
Alfenas, State of Minas Gerais, at Fazenda da Braúna, enrolled with CPF/MF under No 000.000.000-00
and bearer of Identity Card (RG) No. 02.609.892-1 IFP/RJ
(“Xxxxx Xxxxxx”);
(e) XXXXXXX XXXX XX XXXXX XXXXXX, Brazilian, divorced, resident and domiciled in the City
of Areado, State of Minas Gerais, at Fazenda Santa Helena, enrolled with CPF/MF under No
000.000.000-00 and bearer of Identity Card
(RG) No. 2.964.836 IFP/RJ (“Xxxxxxx Xxxxxx”);
(f) XXXXXX XX XXXXXXX XXXXX, Brazilian, married, resident and domiciled in the City of São
Paulo, State of São Paulo, at Xx. Xxxxxxxxxx Xxxxx Xxxx 0000, 00xx Xxxxx, Xxxxx Xxx, Xxx
Code 01451-904, enrolled with CPF/MF under No 000.000.000-00 and bearer of Identity Card (RG) No.
12.521.599 SSP/SP (“Xxxxxx Xxxxx”);
(g) XXX XXXXXXX XXXXXX, Brazilian, single, resident and domiciled in the City of São Paulo,
State of São Paulo, at Xxx Xxxxxxxx 00, apto 74, enrolled with CPF/MF under No 000.000.000-00 and
bearer of Identity Card (RG) No. 34.316.510-7 SSP-SP (“Xxx Xxxxxx”);
(h)
ESPÓLIO DE CÉU XX XXXXX XXXXXX, which probate is currently in the 12th Court of Family
and Succession of the City of São Paulo under
No. 000.01.063812-1, herein represented by Xxxxxx xx
Xxxxxxx Xxxxx (“Estate”), (Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxxxx and the Estate hereinafter jointly referred to as “Sellers”);
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and, as intervening parties,
(i) XXXXX XXXXX XXXXXX X.X., a Brazilian sociedade anônima with principal place of
business in the City of Xxxxx Xxxx, State of Minas Gerais, at Fazenda Monte Alegre, enrolled
with the National Register of Legal Entities (C.N.P.J.) under No. 22.587.687/0001-46, herein
represented by its legal representatives (hereinafter referred to as “Company”); and
(ii) INTERNATIONAL FARMLAND HOLDINGS LLC, a limited liability company organized under the
laws of the State of Delaware, with registered office in the State of Delaware is 0000 Xxxxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 and principal address at Xxxxx Fund Management LLC, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, herein represented by its undersigned legal representative
(hereinafter referred to as “IFH”).
All of the parties described above are hereinafter referred to jointly as “Parties”, each
being “Party”.
WITNESSETH
WHEREAS Sellers, together with Cobra CA Holdings Ltd, Liuede Holdings Ltd., Etiel Societé Anonyme,
Xango Corporation, Fabio Xxxxxx xx Xxxxxxx and Francisco Xxxxxxx xx Xxxxxxx Xxxxx hold one million,
six hundred and eighty thousand (1,680,000) common non par registered shares of the Company, which
represent 100% of the Company’s capital;
WHEREAS the Sellers wish to sell to the Purchaser six hundred and eighty-nine thousand, three
hundred and twenty-three (689,323) common registered non par
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shares, representing approximately forty-one percent (41%) of the Company’s corporate capital
(“Shares”), as per the following chart:
| SHARES BEING | ||||
| SELLER | SOLD | |||
Xxxxx Xxxxxx |
52,591 | |||
Xxxxxx Xxxxx |
32,449 | |||
Xxxxxxx Xxxxxx |
62,012 | |||
Xxx Xxxxxx |
204,960 | |||
Estate |
20,160 | |||
Xxxxx Xxxxxx |
259,830 | |||
Xxxxxxx Xxxxxx |
57,321 | |||
Total |
689,323 | |||
WHEREAS the Purchaser is willing to acquire the Shares from the Sellers.
NOW, THEREFORE, the Parties agree to enter into this Share Purchase and Sale Agreement for Purchase
and Sale of Shares (“Agreement”), which shall be governed by the terms and conditions
below.
SECTION 1. — PURCHASE AND SALE OF SHARES
1.1. Purchase and Sale of Shares. Subject to the conditions set forth in this Agreement,
the Purchaser agrees to buy and the Sellers agree to sell and transfer to the Purchaser for the
Purchase Price (as defined in Section 1.2 below) the Shares, which represent approximately
forty-one percent (41%) of the capital stock of the Company, all such Shares being completely free
and clear of any encumbrance,
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burden, lien, charge, pledges, options, preemptive rights and other similar rights or claims of any
nature whatsoever related thereto (“Liens”).
1.2. Purchase Price.
1.2.1. The price to be paid by the Purchaser to the Sellers for the acquisition of the Shares is
the equivalent in Reais to ten million, two hundred and fifty-seven thousand, seven hundred and
eighty-two US dollars and seventy-four cents (US $10,257,782.74) (the “Purchase Price”).
The Purchase Price will be allocated among the Sellers as described below:
| PURCHASE | ||||
| PRICE | ||||
| SELLER | ALLOCATION | |||
Xxxxx Xxxxxx |
US$ | 782,604.17 | ||
Xxxxxx Xxxxx |
US$ | 482,872.02 | ||
Xxxxxxx Xxxxxx |
US$ | 922,797.62 | ||
Xxx Xxxxxx |
US$ | 3,050,000.00 | ||
Estate |
US$ | 300,000.00 | ||
Xxxxx Xxxxxx |
US$ | 3,866,517.86 | ||
Xxxxxxx Xxxxxx |
US$ | 852,991.07 | ||
Total |
US$ | 10,257,782.74 | ||
1.3. Purchase Price Payment
1.3.1. On the date hereof (the “Closing Date”), the Purchaser shall pay a portion of the Purchase
Price in the amount equivalent in R$ to nine million, one hundred and eighty-eight thousand, twenty
US dollars and eighty-three cents (US$ 9,188.020.83)
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(“Initial
Payment”) to the Sellers in cash.
1.3.2. All conversion of U.S. dollars into Brazilian Reais required by this Agreement shall be made
based on the average purchase and sale commercial exchange rates of the business day immediately
preceding the Closing Date, as published on SISBACEN system of the Central Bank of Brazil (PTAX 800
- Option 5), and the payment to the Sellers shall be made by means of wire transfers (TEDs), in the
amounts described below and to the bank accounts to be informed by the Sellers in writing to the
Purchaser on the date hereof:
| INITIAL | ||||
| PAYMENT | ||||
| SELLER | ALLOCATION | |||
Xxxxx Xxxxxx |
US$ | 648,883.93 | ||
Xxxxxx Xxxxx |
US$ | 349,151.79 | ||
Xxxxxxx Xxxxxx |
US$ | 789,077.38 | ||
Xxx Xxxxxx |
US$ | 2,916,279.76 | ||
Estate |
US$ | 300,000.00 | ||
Xxxxx Xxxxxx |
US$ | 3,599,077.38 | ||
Xxxxxxx Xxxxxx |
US$ | 585,550.60 | ||
Total |
US$ | 9,188,020.83 | ||
1.3.3. The remaining portion of the Purchase Price, in the amount of one million, sixty-nine
thousand, seven hundred and sixty-one Unites States dollars and
ninety cents (US$ 1,069,761.90),
which based on the exchange rate agreed in the previous clause shall be on the Closing Date the
total amount of two million, two hundred eighty-six thousand, one hundred and eighty-eight reais
and seventeen cents (R$2.286.188,17) (the “Holdback”), shall be paid by the Purchaser to
the Sellers on February 16, 2011, by means of wire transfers (XXX) in accordance with written
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instruction provided by the Sellers no later than 10 days prior to the payment date, in the
following proportion:
| HOLDBACK | ||||
| SELLER | ALLOCATION | |||
Xxxxx Xxxxxx |
12.5 | % | ||
Xxxxxx Xxxxx |
12.5 | % | ||
Xxxxxxx Xxxxxx |
12.5 | % | ||
Xxx Xxxxxx |
12.5 | % | ||
Xxxxx Xxxxxx |
25 | % | ||
Xxxxxxx Xxxxxx |
25 | % | ||
Total |
100 | % | ||
1.3.4. The amount of the Holdback shall be monetarily adjusted based on the variation of the Índice
Geral de Preços — Xxxxxxx (IGP-M) disclosed by the Fundação Xxxxxxx Xxxxxx — FGV from February 2006
until the month prior to the effective date of payment.
1.4. Transfer of Shares. Concurrently with the payment of the Initial Payment, the Parties
shall cause the Company to record the transfer of the Shares contemplated herein in the appropriate
shares registry book (livro de registro de ações nominativas) and shares transfer book (livro de
registro de transferências de ações nominativas), duly reflected by the signature of each Party’s
representatives in such books.
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1.5 Taxes. Each Party shall bear the respective taxes imposed on it as a result of the
transactions contemplated by this Agreement in accordance with the applicable laws and regulations.
SECTION 2. — REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller (other the Estate and Xxx Xxxxxx with respect to Sections 2.7 to 2.23 below), hereby
provides the Purchaser the following representations and warranties:
2.1. — Organization. Except as disclosed in the due diligence report attached hereto as
Schedule 2.1:
(i) the Company is a joint-stock company duly organized under the laws of the Federative
Republic of Brazil;
(ii) the Company has all requisite power and authority to carry on its business as presently
conducted;
(iii) the Sellers have delivered to the Purchaser complete and correct copies of the current
bylaws of the Company, as amended and in effect on the date hereof, which have been duly filed with
the competent commercial register;
(iv) the Company has no subsidiaries, nor does it own any share of capital or any other equity
ownership in any other company, partnership, joint venture or other business organization, except
to its ownership interest in Anhumas Agrícola Ltda.; and
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(v) there are no shareholders’ agreements involving the Company.
2.2. Ownership of the Shares. The Shares are owned by Sellers free and clear of any and all
claims, security interests, Liens or encumbrances whatsoever.
2.2.1. The transfer of the Shares to the Purchaser hereunder will convey to the Purchaser good and
marketable title to the Shares free and clear of any claims, security interests, Liens or
encumbrances whatsoever.
2.2.2. The Shares may be freely assigned and transferred by the Sellers in compliance with the laws
and regulations applicable in Federative Republic of Brazil.
2.3. Capital Stock. The capital stock of the Company is two million, five hundred and
twenty thousand reais (R$ 2.520.000,00), represented by one million six hundred and eighty thousand
(1.680.000) shares. The Shares represent approximately forty-one percent (41%) of the total
subscribed and paid up capital stock of the Company. The Sellers are the owners of the Shares,
which are free and clear from any and all Liens. All Shares have been validly subscribed for and
fully paid up. There are no outstanding subscription rights, options or other rights for the
acquisition of the Shares or any other shares to be issued by the Company, or which may be
converted or traded into shares (and/or the right to receive shares) of the capital stock of the
Company. There are no outstanding or authorized subscriptions, option, warrants or other rights or
agreements (including any right of conversion or exchange under any outstanding security or other
instrument) relating to the issuance, sale, delivery or transfer by the Company or by the Sellers
of any shares of the Company’s capital stock. There are no outstanding contractual obligations of
the Company or the Sellers to repurchase, redeem or otherwise acquire any shares
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of the Company’s capital stock. There are no outstanding or authorized stock appreciation or
phamton stock rights with respect to the Company.
2.4. Corporate Authority and Authorization. The Sellers have all power and authority to
enter into this Agreement, to consummate the transactions contemplated herein, and to perform their
obligations hereunder. The Sellers have taken all action as shareholder of the Company necessary to
perform their obligations under this Agreement.
2.5. No Violation. Except as set forth in Schedule 2.5 (which the Sellers represent could
not, individually or in the aggregate, reasonably be expected to adversely affect the ability of
Sellers to consummate the transactions contemplated hereby or to perform their obligations
hereunder), the execution of this Agreement by the Sellers, the consummation of the transactions
contemplated herein and the performance of their obligations hereunder (a) do not violate (i) any
agreement, commitment or obligation to which any of the Sellers is a party, (ii) any law, decree,
rule or regulation, administrative or judicial order to which any of the Sellers may be subject,
and (b) do not require any consent, approval or authorization of, notice to, or filing or
registration with any individual or entity, court or governmental authority.
2.6. Binding Effect. This Agreement has been duly executed and constitutes a valid and
binding obligation of each of the Sellers, and is enforceable against them in accordance with its
terms.
2.7. Financial Statements. Schedule 2.7 contains the Company’s unaudited interim financial
statements for the period ended on September 30, 2005 (the “Balance Sheet Date”) (the
“Financial Statements”). Except as set forth in the notes
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thereto, the Financial Statements fairly and accurately represent in all material respects the
financial position of the Company for the dates and periods reflected therein in conformity with
accounting principles generally accepted in Brazil applied on a consistent basis with the financial
statements of the Company for the preceding years.
2.8. Operation of Business. Since the Balance Sheet Date, the Company has operated in its
ordinary course of business in a manner consistent with past practices and there has been no
material adverse change in the sales, profits, business, operations, properties, assets, condition
(financial or otherwise) of the Company.
2.9. Taxes. Except as disclosed in the due diligence reports attached hereto as Schedule
2.9-A and Schedule 2.9-B, the Company has filed all income tax returns, as well as material fiscal
reports, forms and lists required by the Internal Revenue Service (SRF), Ministry of Labor, the
Department of Welfare (INSS) and the Welfare Financial Administration Institute (IAPAS), and has
timely paid all material federal, state and local taxes and other material governmental charges
including without limitation, income, franchise, gross receipts, sales, employment, personal
property, real property and excise taxes, Social Security Contributions and Contributions to the
Unemployment Guarantee Fund (FGTS), PIS, FINSOCIAL and social contributions relating to the
Company’s business or to the assets of the Company which were due and payable by the Company prior
to the Closing Date.
2.10. Labor Matters. Except as disclosed in the due diligence reports attached hereto as
Schedule 2.10-A and 2.10-B, there are:
(i) no pending labor suits, actions or proceedings against the Company relating to employees,
commercial representatives or independent contractors, and
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the Sellers do not presently know of any threats of significant strikes, work stoppages or
grievances pending by such employees;
(ii) no material collective bargaining or union contracts other than those attached hereto as
Schedule 2.10-C, and the Company is not presently engaged in negotiations with any labor union or
representative thereof with respect to such employees; and
(iii) no employees entitled to compensation from the time before the FGTS system was introduced.
2.10.1. Except as provided for by law or applicable collective bargaining contracts, the Company
has not since the Balance Sheet Date modified any employment contract or profit sharing plan
established and in effect for its employees, nor has it increased the wages, salaries,
compensation, pensions or other benefits payable or to become payable to any of its employees other
than in the ordinary and regular course of business, or made any bonus payments or arrangements
with any of them, for the fiscal year ending December 31, 2005 other than in the regular and
ordinary course of business.
2.10.2. — Without limitation to the foregoing, the Company has not or has not had in the past any
special labor, consulting or other agreements or arrangements with employees, autonomous workers or
other individuals or companies which may have accrued liabilities in excess of two hundred and
fifty thousand reais (R$250.000,00).
2.10.3. — There are no conditions or benefits payable to any managers or directors which are out of
the Company’s ordinary course of business. All employment
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conditions including benefits for managers, officers and directors are disclosed in Schedule 2.10.3
hereto.
2.11. Registration and Permits. The Company has all federal, state or municipal government
licenses, approvals, certificates, permits and franchises required by the Company to carry on its
business as presently conducted, and is not presently aware of any challenges or material
threatened challenges by any relevant authority in respect thereof.
2.12. Litigation. Except as disclosed in the due diligence report attached hereto as
Schedule 2.12, the Company is not presently a defendant in any material litigation or arbitration,
including suits, claims, proceedings or notified investigations, before any federal, state,
municipal or other government department in the Federative Republic of Brazil or abroad, and is not
presently aware of any such threatened material litigation.
2.13. Intellectual Property. Schedule 2.13 hereto lists the intellectual property rights
material to the business of the Company including, without limitation, specifications, know-how,
patents, patent applications, patent rights, trademarks, trademark applications, trade names,
service marks, service xxxx applications, service names, copyrights, registrations, copyright
applications, computer programs and other computer software, inventions, trade secrets, technology,
proprietary process and formulae and customer and marketing information (collectively, the
“Intellectual Property”). All Intellectual Property is owned by the Company. Except as set
forth in Schedule 2.13 hereto, the Company has not entered into any license or other agreement with
respect to, or otherwise consented to, the use of, any of the Intellectual Property.
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2.13.1 — All patents listed in Schedule 2.13 are valid and in force and all patent applications
listed therein are in good standing, and except as otherwise disclosed in Schedule 2.13 attached
hereto, all without receipt of written notice of challenge of any kind and, except as otherwise
disclosed in Schedule 2.13 attached hereto, the Company owns the entire right, title and interest
in and to such patents and patent applications. All of the registrations for trade names,
trademarks, service names, service marks, domain names and copyrights listed, in Schedule 2.13 are
valid and in force and all applications for such registrations are pending and in good standing,
and except as otherwise disclosed in Schedule 2.13 attached hereto, all without receipt of written
notice of challenge of any kind, and the Company owns the entire right, title and interest in and
to all such trade names, trademarks, service names, service marks, domain names and copyrights so
listed as well as the registrations and applications for registration therefore.
2.13.2 — Except as set forth in Schedule 2.13, the use of all Intellectual Property necessary or
required for the conduct of the business of the Company as presently conducted does not infringe or
violate the intellectual property rights of any person. Except as set forth in Schedule 2.13, there
is no infringing use of any of the Intellectual Property by any other person and neither the
Sellers nor the Company has committed any acts, or omitted to take any acts, as would cause a
forfeiture or abandonment of any material rights in the Intellectual Property or would cause the
Intellectual Property to enter the public domain.
2.14. Environmental Matters; Occupational Health and Safety. Except as otherwise provided
for in the due diligence reports attached hereto as Schedule 2.14-A, Schedule 2.14-B and Schedule
2.14-C, the Company complies with all environmental and occupational health and safety laws and
requirements according to usual practices in the Federative Republic of Brazil, and the Sellers are
not aware
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of any material fact which is likely to entail a violation of environmental or occupational health
and safety laws. There has been no material spill, discharge, leak, emission, injection, escape,
dumping or release into any property of the Company or into the environment surrounding any
property of the Company of any toxic or hazardous substances as defined under Brazilian law.
2.15. Assets. All assets being utilized by the Company in its normal course of operation,
including without limitation land, buildings, vehicles, plant and machinery, have been properly
maintained and can be used by the Company as they have been used thus far in the normal course of
business of the Company.
2.15.1. The Company has good and marketable title to all its material assets reflected in the
Financial Statements or acquired since the date thereof (other than those disposed of since the
date thereof in the ordinary course of business and consistent with past practices adopted by the
Company), free and clear of any encumbrance or Lien except:
(i) as disclosed in the Financial Statements, in this Agreement, and any Schedules hereto;
(ii) Liens for taxes, assessments or governmental charges or levies which are not material in
amount and may be paid without penalty or are being contested in good faith by appropriate
proceedings;
(iii) Liens arising in the ordinary course of business in relation to financing of Company’s
operations; and
(iv) Liens which neither materially detract from the value of such assets
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nor materially interfere with their present use.
2.15.2. Except as set forth in Schedule 2.15.2, the Company has good and marketable title over the
real estate where the premises of the Company are located.
2.16. Contracts. The Company is not a party to any remunerated contracts which are not in
the ordinary course of business and which could significantly affect the future profitability of
the Company. All existing material contracts entered into by the Company on the Balance Sheet Date
are listed in the due diligence report attached hereto as Schedule 2.16-A. All existing material
contracts entered into by the Company from the Balance Sheet Date until the Closing Date are
described in Schedule 2.16-B hereto. All existing contracts and agreements entered into by the
Company with its related parties are described in Schedule 2.16-C hereto.
2.17. Insurance. All insurance contracts in force are described in Schedule 2.17 hereto.
2.18. Compliance with Law. To the best of each Seller’s knowledge after due inquiry, the
assets, properties and business of the Company comply in all material respects with all applicable
requirements of law and court orders and no notice, claim, demand or action has been received by or
filed against the Company alleging any failure to so comply in all such material respects.
2.19. Accounts Receivable. Except as disclosed in Schedule 2.19, all accounts receivable of
the Company have arisen from bona fide transactions by the Company in the ordinary course of
business and consistent with past practices adopted by the Company. Such accounts receivable are
subject to no valid defense or offsets except routine customer complaints of an immaterial nature.
All accounts receivable
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reflected in the Financial Statements are good and collectible in the ordinary course of business
at the aggregate recorded amounts thereof, net of any applicable allowance for doubtful accounts
reflected in the Financial Statements, which are consistent with the Company’s historical record of
non collectible accounts.
2.20. Inventory. The inventories of the Company (including raw materials, packaging,
ingredients, supplies, work in-process, finished goods and other materials) (i) are in good,
merchantable and useable condition, and (ii) are reflected in the Financial Statements and (iii)
are reflected in the books and records of the Company at the average monthly cost. The reserve for
inventory obsolescence contained in the Financial Statements fairly reflects the amount of obsolete
inventory as of the respective dates thereof consistently with past practices adopted by the
Company.
2.20.1. Except as set forth in Schedule 2.20.1., the Company has complied with applicable Brazilian
laws and regulations in all material aspects relating to the manner in which the sugar cane related
products are produced and commercialized.
2.21. Changes. Since the Balance Sheet Date, except as disclosed in Schedule 2.21, the
businesses of the Company have been conducted only in the ordinary course of business consistent
with past practices adopted by the Company. Since the Balance Sheet, the Company has not:
(i) sold, leased (as lessor), transferred or otherwise disposed of, mortgaged or pledged, or
imposed or suffered to be imposed any security interest on, any of the material assets necessary to
conduct the business as presently conducted and reflected on the Financial Statements, except for
inventory and minor amounts of
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personal property sold or otherwise disposed of for fair value in the ordinary course of business;
(ii) canceled any debts owed to or claims held by or waived any rights of the Company (including
the settlement of any claims or litigation) other than in the ordinary course of business;
(iii) created, incurred, assumed or guaranteed, or agreed to create, incur, assume or guarantee,
any material indebtedness for borrowed money or any material capitalized lease obligations in
respect of the Company, other than borrowings pursuant to the refinancing of existing credit
facilities of the Company consistent with past practices adopted by the Company;
(iv) accelerated or delayed collection of material notes or accounts receivable generated by the
business of the Company in advance of or beyond their regular due dates or the dates when the same
would have been collected in the ordinary course of business;
(v) delayed or accelerated payment of any material account payable or other material liability of
the Company beyond or in advance of its due date or the date when such liability would have been
paid in the ordinary course of business;
(vi) allowed the levels of raw materials, supplies, packaging, ingredients, work-in-process or
other materials included in the inventory of the Company to vary in any material respect from the
levels customarily maintained by the Company;
(vii) made, or agreed to make, any payment of cash or distribution of assets or any-loan to the
Sellers;
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(viii) paid or agreed to pay, conditionally or otherwise, any material increase in any compensation
to any director, officer or employee of the Company with respect to the business or in any profit
sharing, bonus, incentive, deferred compensation, pension, retirement, medical, hospital,
disability, welfare or other benefits made available to directors, officers or employees of the
Company;
(ix) (a) made, declared, set aside or paid any dividend or distribution (whether in cash, stock or
other property) to any shareholder or
ex-shareholder; (b) issued, granted, sold or pledged or
agreed to issue, grant, sell or pledge any shares of capital stock of the Company, or series
convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire
shares of capital stock of the Company; (c) redeemed, purchased or otherwise acquired or offered to
acquire any outstanding shares of its capital; (d) split, combined or reclassified any shares of
its capital stock; or (e) adopted a plan of liquidation or resolutions providing for the
liquidation, dissolution, merger, consolidation or reorganization of the Company;
(ix) modified, terminated or cancelled any agreement, contract, lease or license involving more
than the Brazilian Reais equivalent to one million reais (R$1.000.000,00) to which the Company is
a party or by which the Company is bound, other than in its ordinary course of business;
(x) made any capital expenditure involving more than one million reais (R$1.000.000,00), other than
in its ordinary course of business;
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(xi) made any material capital investment in, any loan to, or any acquisition of the securities or
assets of any person or entity, other than in its ordinary course of business;
(xii) experienced any material damage, destruction or loss (whether or not covered by insurance) to
its property that had materially impaired its ability to conduct its business as conducted on the
Balance Sheet Date; or
(xiii) modified, terminated or cancelled any existing material employment contract (or terms of
employment of) any director or officer or key employee of the Company or adopted, modified,
terminated or cancelled any bonus, incentive, compensation or other plan, contract or commitment
for the benefit of any director or officer of the Company.
2.22. Powers of Attorney. All powers of attorney granted by the Company and currently in
effect (except for ad xxxxxxx xxxxxx of attorney) are listed in Schedule 2.22 hereto.
2.23. Bank Accounts. All bank accounts opened and maintained by the Company are identified
in Schedule 2.23 hereto.
2.24. Matters Disclosed. Each representation and warranty to Purchaser stated in Sections
2.1 through 2.23 above (“Warranties”) is to be read down and qualified by any information:
(a) disclosed to the Purchaser by the Sellers in writing on or before the Closing Date during
the course of the due diligence investigation conducted by the Purchaser; and
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(b) which was, prior to the Closing Date, otherwise within the actual knowledge of the Purchaser
and that is inconsistent with that Warranty and, to the extent that any Warranty is incorrect or
misleading having regard to any such information, that Warranty is deemed not to have been given to
the extent of such inconsistency.
2.25. Purchaser’s Acknowledgement. The Purchaser acknowledges and agrees that in entering
into this Agreement, the Purchaser had relied on the Warranties only, and not on any other
statement, representation, warranty, condition, forecast or other conduct which may have been made
by or on behalf of the Sellers.
SECTION 3. — REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND IFH
The Purchaser and IFH hereby represent and warrant to the Sellers as follows:
3.1. Organization. The Purchaser is a Brazilian limitada duly organized under the laws of
the Federative Republic of Brazil.
3.2. Power and Authorization. The Purchaser has full power and authority to enter into this
Agreement, to perform its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Purchaser and the performance of its
obligations hereunder have been duly authorized by all necessary corporate acts on the part of the
Purchaser. No other action is necessary to authorize the execution, delivery and performance of
this Agreement by the Purchaser.
- 22 -
3.3. No Violation. The execution of this Agreement by the Purchaser, the consummation of
the transactions contemplated herein and the performance of its obligations hereunder (a) do not
violate (i) any agreement, commitment or obligation to which the Purchaser is a party, (ii) any
law, decree, rule or regulation, administrative or judicial order to which the Purchaser may be
subject, and (b) do not require any consent, approval or authorization of, notice to, or filing or
registration with any individual or entity, court or governmental authority.
3.4. Binding Effect. This Agreement constitutes the legal, valid and binding obligation of
the Purchaser enforceable in accordance with its terms.
SECTION 4. — INDEMNIFICATION
4.1. Subject to the terms and conditions of this Section 4, Sellers, jointly and severally, as the
case may be pursuant to Section 4.2 below, shall indemnify Purchaser, the Company and each of
Purchaser’s affiliates, directors, officers and employees and the successors and assigns of any of
them (collectively, the “Indemnified Parties”, each
being an “Indemnified Party”)
for all demands, claims, actions or causes of action, assessments, losses, damages, liabilities,
costs and expenses (including, without limitation, reasonable attorney’s fees and expenses)
(collectively, “Contingencies”), of any nature whatsoever, asserted against, resulting
from, relating to, imposed upon or incurred by any Indemnified Party, directly or indirectly, by
reason of (a) an act, fact and/or omission taking place at any time before and including the
Closing Date and not identified by, revealed or disclosed to, the Purchaser before the Closing Date
(except for Identified Contingencies defined in item 4.1(c) below); (b) any inaccuracy of any
Warranty, or breach of any material representation of this Agreement, or (c) any of the potential
- 23 -
Contingencies
listed in Schedule 4.1(c) (the “Identified Contingencies”) which Identified
Contingencies shall, notwithstanding any provision to the contrary contained herein, be indemnified
by the Sellers regardless of the fact that such Identified Contingencies are known to the Purchaser
on the date hereof.
4.1.1 The Purchaser hereby acknowledges and accepts that Xxx Xxxxxx shall only be obliged to
respond for the Contingencies referred to in items (a) and (c) of Section 4.1 and therefore shall
not be obliged to respond for Contingencies referred to in item (b) of Section 4.1.
4.2. In the event Sellers are obliged to pay any amount due to a Contingency, such amount shall be
firstly paid with the proceeds of the Holdback, and the payment shall be made to the relevant
Indemnified Party. Once the Holdback is entirely consumed, any amount due by the Sellers to an
Indemnified Party in view of a Contingency may be paid, at the Sellers’ option, (i) in cash or (ii)
by means of a dilution in the membership interest held by each applicable Seller in IFH, pursuant
to the mechanism set forth in the LLC Agreement and Unit Issuance Agreement of IFH. It is hereby
agreed by the Parties that the indemnification obligation of the Sellers assumed in this Section 4
will be joint and several (solidária) up to the amount of three million one hundred forty-seven
thousand reais (R$3,147,000.00). In case the amount of the Contingencies is higher than such
amount, then the liability of the Sellers shall no longer be joint and several for the excess, and
each of the Sellers shall be liable for a portion of the Contingencies according to the Holdback
allocation as defined on Section 1.3.2.
4.3. Notwithstanding any other provision of this Agreement and this Section 4, the indemnification
liability of the Sellers as regards an Indemnified Party shall observe the following rules:
- 24 -
(a) Sellers shall only be obliged to pay Contingencies that (i) have an individual amount equal to
or higher than fifteen thousand reais (R $15,000.00), (ii) are due by the Indemnified Party in view
of an act, fact and/or omission occurred at any time prior to and including the Closing Date; and
(iii) are no longer subject to any form of judicial appeal. The amount provided for in item (i)
above shall be annually adjusted by the variation of the IGP-M;
(b) Sellers will only be obliged to effect any payments when the total accrued amount of the
Contingencies is superior than the equivalent in Brazilian currency to two hundred fifty thousand
United States dollars (US $250,000) (the
“Deductible”). For purposes of calculation of the
Deductible, it shall be applied the conversion from agreed in Section 1.3.2. above on the date when
the payment is made by the Indemnified Party. The Parties agree that (a) any payments that are not
subject to indemnification pursuant to Section 4.3(a)(i) shall not be counted for purposes of
verifying whether the Deductible has been met, and (b) any payments made by the Company due to the
ICMS tax enforcement actions (execuções fiscais) identified during the due diligence conducted by
the Purchaser, as identified in Schedule 4.3, shall not be subject to the Deductible. In other
words, any amounts paid by the Company under such tax enforcement shall be indemnified by the
Sellers in full.
(c) the indemnification obligation of the Sellers as provided for in this Section 4 shall be
limited to the amounts and time limits listed in the chart below, in addition to the amount of the
Holdback. The amounts provided for in the chart below are not cumulative and any amount already
paid by the Sellers as indemnification shall be deducted therefrom. Also the limits below will not
be applicable and the liability of the Sellers will be unlimited in case it is proved that a
Contingency has not been disclosed to the Purchaser due to bad-faith or a malicious act of the
Sellers.
- 25 -
From the Closing Date until its 1st anniversary |
R$ | 19,000,000.00 | ||
From the lst until the 2nd anniversary of the Closing Date |
R$ | 15,000,000.00 | ||
From the 2nd until the 3rd anniversary of the Closing Date |
R$ | 10,000,000.00 | ||
From the 3rd until the 4th anniversary of the Closing Date |
R$ | 6,000,000.00 | ||
From the 4th until the 5th anniversary of the Closing Date |
R$ | 3,000,000.00 | ||
As from the 5th anniversary of the Closing Date |
R$ | 0.00 |
4.4. It is hereby agreed by the Parties that any amount to be received by the Company due to any
unknown asset of the Company somehow related to a period before the Closing Date, as well as any
amounts to be received by the Company or used for off-setting as a result of the lawsuit against
the National Social Security Institute — INSS identified in Schedule 4.4 shall be (i) deducted from
the amount of the Contingencies to be paid by the Sellers, or (ii) paid to the Sellers in cash on
the fifth anniversary of the date hereof, in case the balance of such unknown assets is positive
after the deduction provided in item (i) above, being hereby agreed that such amount shall be
monetarily adjusted based on the variation of the IGPM from the date when the Company receives the
proceeds resulting from winning award of such lawsuit until the date of actual payment to Sellers.
In the event any amount is due by the Purchaser to the Sellers in view of this Section 4.4, Sellers
will have the option to receive such amount by means of ordinary units of membership interest in
IFH, which will be issued at a price to be agreed upon among the Purchaser, Sellers and IFH.
4.4.1 Further to the provisions of Section 4.4 above, any amount and/or credit received by or
granted to the Company due to the suit for damages (ação de indenização) initiated against the
Brazilian Federal Government as regards the sugar cane and alcohol price control, identified in
Schedule 4.4.1 hereto, are not included in the transaction contemplated in this Agreement, and
therefore, shall be
- 26 -
transferred and/or assigned to the Sellers by the Purchaser immediately after such amounts are
received by the Company. All reasonable costs and expenses incurred as from the Closing Date in the
defense of such law suit shall be deducted from the amount to be transferred and/or assigned to the
Sellers, provided they can be proved by means of applicable documents.
4.5. After the Closing Date, the Indemnified Party will notify all Sellers promptly upon the
initiation of any proceeding relating to a Contingency hereunder, but no later than within the time
that corresponds to half of the term for presentation of the defense, being agreed that failure of
the Purchaser in notifying all Sellers within such maximum term shall relieve the Sellers of their
indemnification obligations for the respective Contingency. The Sellers shall have the right to
defend the Indemnified Party in any proceeding which may give rise to the payment of any amounts
relating to a Contingency hereunder, provided that the Sellers acknowledge the applicability of the
indemnification provisions pursuant to this Section 4 as to the subject matter of such proceeding.
The defense carried out by the Sellers shall be made by attorneys contracted by the Sellers and
approved by the Company, which approval shall not be unreasonably withheld, being the associated
reasonable fees paid by the Company. In the event of a final decision contrary to the Company and
not subject to appeal, all amounts paid by the Company in connection with the respective lawsuit
and related to a Contingency, as well as the attorneys’ fees and other reasonable related costs,
shall be reimbursed by the Sellers, and deducted from the limits provided for in the chart of
Section 4.3(c) above. The Company and the Purchaser agree to cooperate fully with the Sellers and
their counsel in the defense against any such asserted liability. In any event, the Company and the
Purchaser shall have the right to participate at their own expense in the defense of such asserted
liability. Neither the Company nor the Purchaser may effect payments or compromise without the
prior written consent of the Sellers, which shall not be
unreasonably denied.
- 27 -
4.5.1. The Indemnified Party shall use its reasonable efforts to seek indemnification with respect
to every Contingency from all of the Sellers, and not only from one or a portion of the Sellers.
Should the Indemnified Party fail to use reasonable efforts to seek indemnification with respect to
any Contingency from any given Seller, the indemnification obligation of all Sellers with respect
to such Contingency shall be relieved.
4.6. At any time until the 5th anniversary of the Closing Date (but not more than one
time per quarter), any Seller shall be entitled to request from the Purchaser a statement
reflecting all amounts indemnified by the Sellers pursuant to this Section 4 and, as the case may
be, along with evidence that reasonable efforts seeking indemnification were taken against all
Sellers with respect to the respective indemnified Contingencies.
SECTION 5. — OTHER COVENANTS
5.1. Expenses.
(a) The fees and expenses (including the fees and expenses of its attorneys, accountants, financial
advisors and other professionals), incurred by Sellers and the Company in connection with this
Agreement and all transactions related hereto shall be borne by the Company.
(b) The fees and expenses (including the fees and expenses of its attorneys, accountants, financial
advisors and other professionals), incurred by the Purchaser and/or IFH in connection with this
Agreement and all transactions related hereto
shall be borne by Purchaser and/or IFH.
- 28 -
(c) Outstanding success fees due to Banco Rabobank International do Brasil S.A. (“Rabobank”) under
a certain Consultancy Agreement shall be paid by the Sellers.
5.2. Best Efforts, Further Assurances. Subject to the terms and conditions contained
herein, each of the Parties hereto agrees to use its best efforts to take, or cause to be taken,
all actions and measures reasonably necessary or advisable under applicable laws to consummate and
make effective the transactions contemplated by this Agreement.
5.3. Approvals and Consents. The Sellers and the Purchaser shall cooperate, if necessary,
to give all notices and obtain, as soon as reasonably practicable, all approvals, consents and
waivers of federal, state and local government departments or agencies or of any other parties
required or deemed necessary or beneficial for consummation of the transactions contemplated by
this Agreement.
5.4. Replacement of Guarantees. The Purchaser hereby acknowledges that the Sellers have
given certain guarantees to third parties in relation to obligations assumed by the Company, all
such guarantees described in Schedule 5.4 (“Guarantees”), and the Purchaser hereby undertakes to
replace all such Guarantees (subject to the required creditor approval) for other equivalent
guarantees in no later than 90 (ninety) days as from the Closing Date. The Purchaser shall
indemnify and hold each Seller harmless against any cost and/or expense incurred by each Seller
resulting from the enforcement of any Guarantee against such Seller.
5.5. Announcements. The Parties agree that any announcement addressed to the general
public, relating to the transaction contemplated herein may only be issued
- 29 -
from and after the date of this Agreement (“Announcement”). Any Party making any such
Announcement shall notify the other party thereof within a reasonable time prior to making such
Announcement, stating the time and the content of such Announcement; provided that the Parties
shall have a reasonable opportunity to review such an Announcement prior to its release. The
Parties agree that they shall use their best efforts that, in the event they refer, in any
Announcement, to the specifics of the transactions contemplated herein and in the ancillary
documents related hereto, to accurately reflect their structure. Notwithstanding the above, each
Party may issue any Announcement to the extent required by applicable laws and regulations.
5.6. IFH Guarantee. In the capacity of intervening party to this Agreement, IFH irrevocably
and unconditionally, jointly and severally, guarantees to each Seller punctual performance by the
Purchaser of all the Purchaser’s obligations under this Agreement, pursuant to the terms of
Articles 275 to 285 of the Brazilian Civil Code.
SECTION 6. — MISCELLANEOUS
6.1. Notices. Any notice or other communication permitted or required to be given between
the Parties hereto shall be made in writing and shall be deemed to have been duly given to a Party
when delivered in person, or sent by courier service or by electronic facsimile transmission
(receipt electronically confirmed) to such Party at the relevant address or facsimile number set
forth below. Any Party may change its address or facsimile number for the purpose of receiving
notices by giving notice in accordance with the provisions of this Clause 6.
To the Sellers:
- 30 -
(a) Xxxxxxx Xxxxxx
Fazenda Xxxxx Xxxx
37115-000 Xxxxx Xxxx — MG
Brazil
Fax: (00-00) 0000-0000
Fazenda Xxxxx Xxxx
37115-000 Xxxxx Xxxx — MG
Brazil
Fax: (00-00) 0000-0000
(b) Xxxxx Xxxxxx
Av. Presidente Xxxxxx 231, 18th floor
20030-021 Rio de Janeiro — RJ
Brazil
Fax: (00) 0000-0000
Av. Presidente Xxxxxx 231, 18th floor
20030-021 Rio de Janeiro — RJ
Brazil
Fax: (00) 0000-0000
(c) Xxxxx Xxxxxx
Xxxxxxx xx Xxxxxx
00000-000 Alfenas — MG
Brazil
Fax: (00-00) 0000 0000
Xxxxxxx xx Xxxxxx
00000-000 Alfenas — MG
Brazil
Fax: (00-00) 0000 0000
(d) Xxxxxxx Xxxxxx
Fazenda Santa Helena
37140-000 Areado — MG
Brazil
Fax: (00-00) 0000-0000
Fazenda Santa Helena
37140-000 Areado — MG
Brazil
Fax: (00-00) 0000-0000
(e) Xxxxxx Xxxxxxx Xxxxx
Xx. Brigadeiro Xxxxx Lima, 1.461, 10th floor, Torre Sul
01451-904 São Paulo — SP
Brazil
Xx. Brigadeiro Xxxxx Lima, 1.461, 10th floor, Torre Sul
01451-904 São Paulo — SP
Brazil
- 31 -
Fax:
(00-00) 0000-0000
(f) Xxx Xxxxxx
Xxx Xxxxxxxx 00, xxxx. 00
00000-000 Xxx Xxxxx — SP
Fax: (00-00) 0000-0000
Xxx Xxxxxxxx 00, xxxx. 00
00000-000 Xxx Xxxxx — SP
Fax: (00-00) 0000-0000
(g) Estate
Xxxxxx Xxxxxxx Leite
Av. Brigadeiro Xxxxx Lima, 1.461,10th floor, Torre Sul
01451-904 São Paulo — SP
Fax: (00-00) 0000-0000
Xxxxxx Xxxxxxx Leite
Av. Brigadeiro Xxxxx Lima, 1.461,10th floor, Torre Sul
01451-904 São Paulo — SP
Fax: (00-00) 0000-0000
With a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxx
Av. Presidente Xxxxxx 231, 18th floor
20030-021 Rio de Janeiro — RJ
Brazil
Fax: (00) 0000-0000
Av. Presidente Xxxxxx 231, 18th floor
20030-021 Rio de Janeiro — RJ
Brazil
Fax: (00) 0000-0000
To the Purchaser:
Adeco Brasil Participações Ltda.
SHIS — QI23, Bloco B, sala 201, Ed. Top 00, Xxxx Xxx
00000-000 Xxxxxxxx — DF
Brazil
Fax: (00-00)0000-0000
SHIS — QI23, Bloco B, sala 201, Ed. Top 00, Xxxx Xxx
00000-000 Xxxxxxxx — DF
Brazil
Fax: (00-00)0000-0000
- 32 -
Attention: Xxxxxxxx Xxxxxxx
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx dos Xxxxxx
X. Boa Vista 254, 9° andar
01014-907 São Paulo—SP
Brazil
Fax: (00-00) 0000-0000
X. Boa Vista 254, 9° andar
01014-907 São Paulo—SP
Brazil
Fax: (00-00) 0000-0000
To the Company:
Fazenda Monte Alegre
37140-000 Areado — MG
Brazil
Fax: (00-00) 0000 0000
Attention: Xxxxxxx Xxxxxx
37140-000 Areado — MG
Brazil
Fax: (00-00) 0000 0000
Attention: Xxxxxxx Xxxxxx
With a copy (which shall not constitute notice) to:
Adeco Brasil Participações Ltda.
SHIS — QI23, Bloco B, sala 201, Ed. Top 00, Xxxx Xxx
00000-000 Xxxxxxxx—DF
Brazil
Fax: (00-00)0000-0000
Attention: Xxxxxxxx Xxxxxxx
SHIS — QI23, Bloco B, sala 201, Ed. Top 00, Xxxx Xxx
00000-000 Xxxxxxxx—DF
Brazil
Fax: (00-00)0000-0000
Attention: Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx dos Xxxxxx
- 33 -
R. Boa Vista 254, 9° andar
01014-907 São Paulo — SP
Brazil
Fax: (00-00) 0000-0000
01014-907 São Paulo — SP
Brazil
Fax: (00-00) 0000-0000
To IFH:
International Farmland Holdings LLC
c/x Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Fax:(l 212) 000-0000
Attention: Xxxx Xxxx
c/x Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Fax:(l 212) 000-0000
Attention: Xxxx Xxxx
With a copy (which shall not constitute notice) to each of:
Xxxxxxx Procter LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Fax: 0 000-000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Fax: 0 000-000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
and
Pampas Humedas LLC
c/x Xxxxx Fund Management LLC
c/x Xxxxx Fund Management LLC
- 34 -
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Facsimile: (000) 000-0000
Attention: Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Facsimile: (000) 000-0000
Attention: Xxxx Xxxx
6.2. Arbitration. Any dispute, controversy or claim (a “Dispute”) arising out of or
in connection with this Agreement, including any question regarding its existence, validity,
enforcement, performance, legal interpretation or termination, shall be referred to and finally
resolved by arbitration. The arbitration shall be instituted and held in accordance with the rules
of the Brazil-Canada Chamber of Commerce (Cámara de Comércio Brasil-Canadá; the “CCBC”) (the
“Rules”), which Rules are deemed to be incorporated by reference into this
Section 6.2. The administration and correct conduct of the arbitration proceedings shall be
incumbent upon the CCBC. The number of arbitrators shall be three (3), with one (1) arbitrator
appointed by the claimant(s), one (1) arbitrator appointed by defendant(s). The arbitrators
appointed by the parties, on their turn, shall choose a third arbitrator among the members of the
Panel of Arbitrators of the CCBC, who shall preside over the Arbitration Tribunal.
6.2.1. Procedural Matters. The legal place of arbitration shall be in the City of São
Paulo, State of São Paulo, Brazil, where the arbitration award shall be rendered. The language to
be used in the arbitral proceedings shall be Portuguese. The governing Law of this Agreement shall
be as specified in Section 6.10 below and the procedural aspects of the arbitration shall be
governed by the Rules. Notwithstanding the foregoing, each Party shall (i) provide to the other
party, reasonably in advance of any hearing, copies of all documents which such party intends to
present in such hearing, (ii) be allowed to conduct reasonable discovery
- 35 -
through written document requests and depositions of any employees, senior officers or service
providers of the other Party, the nature and extent of which discovery shall be determined by the
arbitration tribunal taking into account the needs of the parties hereto and the purposes of
arbitration to make discovery expeditious and cost effective, and (iii) be entitled to make an oral
presentation to the arbitration tribunal.
6.2.2. Consolidation. In order to facilitate the comprehensive resolution of related
Disputes, and upon request of any Party to the arbitration proceeding, the arbitration tribunal
may, within ninety (90) days of its appointment, consolidate the arbitration proceeding with any
other arbitration proceeding involving any of the Parties hereto relating to this Agreement. The
arbitrators shall not consolidate such arbitrations unless they determine that (i) there are issues
of fact or Law common to the proceedings, so that a consolidated proceeding would be more efficient
than separate proceedings, and (ii) no Party hereto would be prejudiced as a result of such
consolidation through undue delay, conflict of interest or otherwise. In the event of conflicting
awards on the issue of consolidation by the arbitration tribunal constituted hereunder, the ruling
of the tribunal constituted under this Agreement shall govern, and that tribunal shall decide all
Disputes in the consolidated proceeding.
6.2.3. Exceptional Court Jurisdiction. The Parties are fully aware of all terms and effects
of the arbitration clause set forth herein, and irrevocably agree that any Disputes shall be solely
referred to arbitration. Without prejudice to validity of the arbitration clause, however, the
Parties hereby elect the courts in the Judicial District of São Paulo, State of São Paulo, Brazil,
as the exclusive forum for pursuing any enjoining or other conservatory measures of a preventive
nature to secure the arbitration to be initiated or already in progress between the Parties
- 36 -
and/or to ensure the existence and enforceability of the arbitration proceedings.
6.2.4. Award. The arbitral award shall be final and binding upon the parties, and not
subject to any appeal, to the fullest extent permitted by applicable Law, and shall deal with — but
not be limited to — the question of liability for administrative costs of arbitration, arbitrators’
fees and all matters related thereto. The arbitrators may at their discretion award costs,
including legal fees, to the prevailing and/or defeated Party or Parties, which shall be limited to
10% over the amount of the award granted to winning party. Decisions of the arbitrators shall be in
writing and shall set forth the reasons therefore, and, to the extent applicable, the manner in
which the amount of the award was calculated. Any monetary award arising from the arbitration
proceedings may include interest from the date of any damages incurred for breach or other
violation of this Agreement and from the date of the award, until paid in full, at a rate to be
fixed by the arbitrators.
6.3. Entire Agreement. This Agreement and Schedules attached hereto contain the entire
agreement and understanding concerning the subject matter hereof among the Parties hereto and
specifically supersede any prior understanding of the Parties on the subject matter hereof.
6.4. Waiver, Amendment. No waiver, termination or discharge of this Agreement, or any of
the terms or provisions hereof, shall be binding upon any Party hereto unless confirmed in writing.
No waiver by any Party hereto of any term or provision of this Agreement or of any default
hereunder shall affect such Party’s rights thereafter to enforce such term or provision or to
exercise any right or remedy in the event of any other default, whether or not similar. This
Agreement may not be modified or amended except in writing and executed by all Parties
hereto.
- 37 -
6.5. Severability. If any provision of this Agreement shall be held void, voidable, invalid
or inoperative, no other provision of this Agreement shall be affected as a result thereof, and,
accordingly, the remaining provisions of this Agreement shall remain in full force and effect as
though such void, voidable, invalid or inoperative provision had not been contained herein.
6.6. Assignment. No Party hereto may assign this Agreement, in whole or in part, without
the prior written consent of all of the other Parties, except that the Purchaser shall be
authorized to assign this Agreement to any affiliate upon a 30 day prior written notice to the
Sellers.
6.7. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and permitted assigns.
6.8. Submission to the Antitrust Authorities. The Parties will discuss in good faith
whether the transaction contemplated hereby is subject to approval the Conselho Administrativo de
Defesa Econômica — XXXX, the Secretaria de Direito Econômico — SDE, and Secretaria de
Acompanhamento Econômico — SEAE (collectively, the “Antitrust Authorities”). Should the
Parties reach the conclusion that such approval is required, the Parties will coordinate and submit
the transaction contemplated hereby to the Antitrust Authorities within 15 (fifteen) business days
as from the date of execution of this Agreement. The Parties will cooperate with and provide each
other with any and all information and documents that are reasonably required for the purposes of
submitting the transaction hereunder to the Antitrust Authorities.]
6.8.1. The relevant Antitrust Authorities filing fees and related expenses (including attorney
fees) shall be borne by the Company.
- 38 -
6.9. Languages. This Agreement is executed only in the English language. The Parties agree
to review and initial (either directly or through its attorneys at law) all pages of a sworn
translation into Portuguese. In the event of any dispute, the respective sworn translation
initialed as agreed herein shall prevail.
6.10. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the Federative Republic of Brazil.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement, in seven (7) originals of
identical form and content, along with the two (2) witnesses below.
| Rio de Janeiro and New York, February 16, 2006 ADECO BRASIL PARTICIPAÇÕES LTDA. |
||||
| By | /s/ Xxxxxxxx Xxxx Xxxxxxx | |||
| Xxxxxxxx Xxxx Xxxxxxx | ||||
| XXXXXXX XXXXXXX XXXXXXX XXXXXX |
||||
| /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx | ||||
| XXXXX XXXXXX XXXXXXX XXXXXX |
||||
| /s/ Paulo Xxxxxx Xxxxxxx Xxxxxx | ||||
| XXXXX XXXXX XX XXXXX XXXXXX |
||||
| /s/ Mário Xxxxx Xx Xxxxx Xxxxxx | ||||
- 39 -
| XXXXX XX XXXX XX XXXXX XXXXXX |
||||
| /s/ Xxxxx Xx Xxxx Xx Xxxxx Xxxxxx | ||||
| XXXXXX XX XXXXXXX XXXXX |
||||
| /s/ Xxxxxx Xx Xxxxxxx Xxxxx | ||||
| XXX XXXXXXX XXXXXX |
||||
| /s/ Xxx Xxxxxxx Xxxxxx | ||||
| ESPÓLIO DE CÉU XX XXXXX XXXXXX |
||||
| /s/ Xxxxxx xx Xxxxxxx Xxxxx | ||||
| Xxxxxx xx Xxxxxxx Xxxxx | ||||
| XXXXX XXXXX XXXXXX X.X. |
||||
| /s/ Xxxxx Xx Xxxx Xx Xxxxx Xxxxxx | ||||
| INTERNATIONAL FARMLAND HOLDINGS LLC |
||||
| /s/ Xxxx Xxxxx | ||||
| Xxxx Xxxxx | ||||
Witnesses:
1. -
|
/s/ [ILLEGIBLE]
|
|||
| I.D.: 11660685.6 | ||||
2. -
|
/s/ [ILLEGIBLE]
|
|||
| I.D.: 11661918-1 |
