PURCHASE AGREEMENT
EXHIBIT
99.C
EXECUTION
COPY
THIS
PURCHASE AGREEMENT (the “Agreement”)
is
made and entered into as of October 1, 2008 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”).
1.
Authorization
and Sale of the Shares.
Subject
to the terms and conditions of this Agreement, the Company has authorized
the
issuance and sale of up to 39,566,626 shares
of
its class A common stock, par value $0.01 per share (the “Class
A Common
Stock”).
2.
Preemptive
Rights Offering.
The
Company will offer (the “Preemptive
Rights Offering”)
to its
shareholders in accordance with applicable law (the “Participating
Shareholders”),
in
each case pursuant to exemptions from registration under applicable U.S.
securities laws, the right to subscribe to such number of shares of Class
A
Common Stock or, if applicable, Brazilian Depositary Receipts representing
such
shares of Class A Common Stock (“BDRs”)
as
necessary to prevent the economic dilution of the Participating Shareholders
(the “Preemptive
Rights Option”)
in the
Company’s share capital. The Preemptive Rights Option will be exercised by the
Participating Shareholders no later than the date (the “Preemptive
Rights Option Exercise Date”),
which
is on or about three trading days prior to the Closing Date (as defined
below).
3. Agreement
to Sell and Purchase.
On the
basis of the representations and warranties contained in this Agreement,
and
subject to its terms and conditions, the Company hereby agrees (i) to sell
to
GIF, and GIF agrees to purchase from the Company, at the purchase price of
US$7.90 per share (the “Purchase
Price”),
15,303,797 shares of Class A Common Stock and (ii) to sell to Bradseg, and
Bradseg agrees to purchase from the Company, at the Purchase Price, 1,151,899
shares of Class A Common Stock in the form of BDRs.
1
The
aggregate number of shares of Class A Common Stock and 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
16,781,816 shares of Class A Common Stock (including Class A Common Stock
in the
form of BDRs). The actual number of Class A Common Stock and Class A Common
Stock in the form of 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, but in any circumstance, shall not be less than
an
aggregate of 10,594,937 shares of Class A Common Stock and 797,468 Class
A
Common Stock in the form of BDRs.
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 16,781,816 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 39,566,626 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 22,784,810 shares
of
Class A Common Stock.
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.”
4.
Payment
and Delivery.
Payment
for the Shares shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Shares (such
payment and delivery hereinafter referred to as the “Closing”)
at
10:00 a.m., New York City time, on October 20, 2008 or at such other time
on the
same or such other date, not later than October 31, 2008, as shall be agreed
by
the Company and the Purchasers. The time and date of such payment are
hereinafter referred to as the “Closing
Date.”
The
Class
A Shares shall be registered in the name of GIF or in the name of a nominee
or
nominees designated by GIF in writing at least two days prior to the Closing
Date and the BDR Shares shall be registered in the name of Bradseg or in
the
name of a nominee or nominees designated by Bradseg in writing at least two
days
prior to the Closing Date; provided that such nominees shall not be “U.S.
Persons” as defined pursuant to Rule 902 promulgated under the Securities Act of
1933, as amended (the “Securities
Act”).
The
certificates evidencing the Shares shall be delivered to the respective
Purchasers on the Closing Date, with any transfer taxes payable in connection
with the transfer of the Shares to the Purchasers duly paid by the Company,
against payment of the Purchase Price therefore by each such
Purchaser.
2
5.
Conditions
to the Company’s Obligations.
The
Company's obligation to issue the Shares to the Purchasers is subject to
the
following conditions, any one or more of which may be waived in writing by
the
Company:
(a) the
Preemptive Rights Offering shall have been made and the Preemptive Rights
Option
Exercise Date shall have occurred and the Preemptive Rights Offering shall
have
been consummated;
(b) no
federal, state or local governmental, legislative, judicial, administrative
or
regulatory authority, agency, commission, body or other governmental entity
or
self-regulatory organization (each a “Governmental
Authority”)
of
Brazil, the United States, Bermuda or any other competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, law,
ordinance, rule, regulation, judgment, decree, injunction, ruling or other
order
(whether temporary, preliminary or permanent) (collectively, an “Order”)
that
is in effect and restrains, enjoins or otherwise prohibits consummation of
any
transaction contemplated by this Agreement;
(c) the
representations and warranties of each of the Purchasers set forth in this
Agreement shall be true and correct as if made on the Closing Date;
(d) each
of
the Purchasers shall have fulfilled in all material respects its respective
undertakings set forth in this Agreement on or prior to the Closing
Date;
(e) the
Company shall have received from the Purchasers, two (2) trading days prior
to
the Closing Date, a certificate stating the number of Class A Common Shares
and
the exact number of Class A Common Shares in the form of BDRs to be delivered
by
the Company to each of GIF and Bradseg at Closing;
(f) the
Company shall have received a certificate, dated the Closing Date and signed
by
an executive officer of each Purchaser, to the effect that conditions set
forth
in the foregoing paragraphs (c) and (d) shall have been satisfied. The officer
signing and delivering such certificate may rely upon the best of his or
her
knowledge as to proceedings threatened; and
3
(g) The
Company shall have obtained all necessary corporate approvals necessary for
the
consummation of the transaction contemplated by this Agreement.
6. Conditions
to the Purchaser’s Obligations. The
several obligations of GIF and Bradseg to purchase and pay for the Class
A
Shares and BDR Shares, respectively, on the Closing Date are subject to the
following conditions, any one or more of which may be waived in writing by
any
of the Purchasers:
(a) the
Preemptive Rights Offering shall have been made and the Preemptive Rights
Option
Exercise Date shall have occurred and the Preemptive Rights Offering shall
have
been consummated;
(b) no
Governmental Authority of Brazil, the United States, Bermuda or any other
competent jurisdiction shall have enacted, issued, promulgated, enforced
or
entered any Order that is in effect and restrains, enjoins or otherwise
prohibits consummation of any transaction contemplated by this
Agreement;
(c) the
representations and warranties of the Company set forth in this Agreement
shall
be true and correct as if made on the Closing Date;
(d) the
Company shall have fulfilled in all material respects its undertakings set
forth
in this Agreement on or prior to the Closing Date;
(e) the
Purchasers shall have received a certificate, dated the Closing Date and
signed
by an executive officer of the Company, to the effect that conditions set
forth
in the foregoing paragraphs (c) and (d) shall have been satisfied. The officer
signing and delivering such certificate may rely upon the best of his or
her
knowledge as to proceedings threatened;
(f) the
Principal Shareholder shall have purchased the Principal Shareholder Shares
(as
defined in Section 9 hereto) for an aggregate purchase price of not less
than
US$50,000,000 and the Purchasers shall have received evidence of the
consummation of such transactions;
(g) the
Shares shall have been duly authorized for listing, subject to official notice
of issuance and the end of the restricted period, on the New York Stock Exchange
(the “NYSE”);
(h) the
Purchasers shall have received an opinion of Xxxxx Xxxx & Xxxxxxxx, in a
form reasonably satisfactory to the Purchaser, an opinion of Bermuda Counsel
to
the Company in a form reasonably satisfactory to the Purchaser, and an opinion
of Xxxxx, Cescon Xxxxxxxxxx, Barrieu e Xxxxxx Advogados, in a form reasonably
satisfactory to the Purchaser;
4
(i) The
Company shall have increased the size of its board of directors from nine
(9) to
eleven (11) members; and
(j) The
Company shall have obtained all necessary corporate approvals necessary for
the
consummation of the transaction contemplated by this Agreement.
7. Representations,
Warranties and
Covenants of the Company.
The
Company hereby represents and warrants to, and covenants with, the Purchasers,
that, except as otherwise disclosed in the Company’s Annual Report on Form 20-F
for the fiscal year ended April 30, 2008 or its other reports, schedules,
forms,
statements and other documents required to be filed by it with the Securities
and Exchange Commission (the “Commission”)
under
the Securities Exchange Act of 1934 (the “Exchange
Act”)
and
the Securities Act for such period as the Company was required by law to
file
such material (the foregoing materials, and the exhibits thereto and documents
incorporated by reference therein, being collectively referred to herein
as the
“SEC
Reports”):
(a) The
Company has been duly incorporated and is validly existing as an exempted
company in good standing under the laws of Bermuda, with corporate power
and
authority to own its properties and to conduct its business currently conducted,
and, except as would not be reasonably likely to have a Material Adverse
Effect,
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing (if applicable) under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business
so
as to require such qualification; each subsidiary of the Company that is
a
“significant subsidiary” within the meaning of Rule 1-01(w) of Regulation S-X
under the Securities Act (individually a “Significant
Subsidiary”
and
collectively the “Significant
Subsidiaries”)
has
been duly organized and is validly existing in good standing (if applicable)
under the laws of its jurisdiction of organization. “Material
Adverse Effect”
means
a
material adverse effect on (A) the condition, financial or otherwise, or
the
earnings, business or operations of the Company and its subsidiaries, taken
as a
whole, or (B) the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated hereby.
(b) Neither
the Company nor any of its Significant Subsidiaries are (i) in violation
of its
memorandum of association, bye-laws, estatuto
social
or other
constitutive documents; (ii) in default, and no event exists that, with notice
or lapse of time or both, would constitute such a default, in the performance
or
observance by the Company or any Significant Subsidiary of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, loan
agreement or other agreement or instrument to which it is a party or by which
it
is bound or to which its property or assets are subject; or (iii) in violation
of any applicable law, statute, rule or regulation or any judgment, order
or
decree of any governmental or regulatory authority or court, except, in the
case
of clauses (ii) and (iii), for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
5
(c) This
Agreement has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, the Company, enforceable in accordance with its
terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity.
(d) The
shares of Class A Common Stock outstanding prior to the issuance of the Shares
have been duly authorized and are validly issued, fully paid and
non-assessable.
(e) The
Shares have been duly authorized and, when issued and delivered in accordance
with the terms of this Agreement, will be validly issued, fully paid and
non-assessable, free and clear of any liens, charges, security interests,
encumbrances, rights of first refusal, preemptive rights or other restrictions
of any kind (collectively “Liens”),
other
than Liens imposed by the Purchasers or resulting from actions of any of
the
Purchasers.
(f) The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement will not contravene any provision of
(i)
any applicable law, statute, rule or regulation in any material respect,
(ii)
the memorandum of association or bye-laws of the Company, (iii) any agreement
or
other instrument binding upon the Company or any of its subsidiaries that
is
material to the Company and its subsidiaries, taken as a whole, or (iv) any
judgment, order or decree of any Governmental Authority having jurisdiction
over
the Company or any subsidiary that is material to the Company and its
subsidiaries, taken as a whole, and no consent, approval, authorization or
order
of, or qualification with, any Governmental Authority is required for the
performance by the Company of its obligations under this Agreement, except
for
any consents, approvals, authorizations, orders or qualifications obtained
prior
to or on the Closing Date.
(g) The
capitalization of the Company is as set forth in the SEC Reports. The Company
has not issued any capital stock since its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of employee stock
options under the Company’s stock option plans and pursuant to the conversion or
exercise of securities exercisable, exchangeable or convertible into any
class
of its Common Stock. Except for rights which will be satisfied by the making
of
the Preemptive Rights Offering, no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate
in
the transactions contemplated by this Agreement. Except as set forth in the
SEC
Reports, there are no outstanding options, warrants, script rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for,
or
giving any Person any right to subscribe for or acquire, any shares of any
class
of its Common Stock other than pursuant to the exercise of employee stock
options under the Company’s stock option plans (which stock option plans are
described in the SEC Reports) and pursuant to the conversion or exercise
of
securities exercisable, exchangeable or convertible into any class of its
Common
Stock.
6
(h) Neither
the Company nor any Affiliate (as defined in Rule 501(b) of Regulation D
under
the Securities Act of 1933, as amended (the “Securities
Act”)
(“Affiliate”))
of
the Company, directly, or through any agent, (i) has engaged or will engage
in
any directed selling efforts, as defined in Regulation S promulgated under
the
Securities Act (“Regulation
S”);
or
(ii) has entered into or will enter into any contractual arrangement with
respect to the distribution of the Shares except for this
Agreement.
(i) There
are
no litigation or similar proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its subsidiaries is a party or
of
which any property of the Company or any of its subsidiaries is the subject
which, individually or in the aggregate, could reasonably be expected to
have a
Material Adverse Effect.
(j) The
consolidated financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the SEC Reports present
fairly in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated therein
and
the consolidated results of their operations for the periods specified therein;
and except as stated therein, such financial statements were prepared in
conformity with the applicable generally accepted accounting principles pursuant
to which such financial statements were prepared, applied on a consistent
basis
during the periods involved (“GAAP”)
applied on a consistent basis (except as may be noted therein).
7
(k) Since
August 16, 2007, the Company has timely filed all documents required to be
filed
with the Commission pursuant to Sections 13(a), 14(a) or 15(d) of the Exchange
Act. The SEC Reports, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the
rules and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make such statements,
in the
light of the circumstances in which they were made, not misleading.
(l) The
Company and each of its Significant Subsidiaries have conducted their businesses
in compliance with all applicable federal, state and foreign laws, regulations
and applicable stock exchange requirements, except where (i) the failure
to be
in compliance could not reasonably be expected to have, individually or in
the
aggregate, a Material Adverse Effect or (ii) the necessity of compliance,
or the
failure to comply, therewith is being contested in good faith by appropriate
proceedings.
(m) The
Company and each of its Significant Subsidiaries have all permits, licenses,
authorizations, orders and approvals of, and have made all filings, applications
and registrations with, any Governmental Entities that are required in order
to
carry on their business as presently conducted, except where the failure
to have
such permits, licenses, authorizations, orders and approvals or the failure
to
make such filings, applications and registrations, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
and all such permits, licenses, certificates of authority, orders and approvals
are in full force and effect and, to the knowledge of the Company, no suspension
or cancellation of any of them is threatened, and all such filings, applications
and registrations are current, except where such absence, suspension or
cancellation, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
(n) The
Company and each of its Significant Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access
to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with
the existing assets at reasonable intervals and appropriate action is taken
with
respect to any differences.
8
(o) To
ensure
the legality, validity, enforcement or admissibility into evidence in a legal
or
administrative proceeding in Bermuda or Brazil of this Agreement, it is not
necessary that this Agreement be filed or recorded with any governmental
or
regulatory authority or court or that any registration tax, stamp duty or
similar tax be paid on or in respect of this Agreement other than court costs
(including without limitation, filing fees and deposits to guarantee judgment
required by a court in Bermuda or Brazil), and except that, in the case of
Brazil, (A)(i) this Agreement must be translated into Portuguese by a sworn
translator and (ii) the signatures of the parties thereto that execute this
Agreement outside of Brazil must have been notarized by a notary public licensed
as such under the law of the place of signing and the signature of such notary
public shall have been authenticated by the Brazilian Consulate and (B) this
Agreement, together with its respective sworn Portuguese translation, must
be
registered with the appropriate Registry of Deeds and Documents in Brazil,
which
registration may be made at any time for judicial enforcement thereof in
Brazil.
(p) The
Company is a “foreign private issuer” (as defined in Rule 3b-4(c) under the
Exchange Act.
(q) The
Company has the power to submit, and pursuant to Section 22 of this Agreement,
has legally, validly and effectively submitted, to the non-exclusive
jurisdiction of any U.S. federal or New York state court in the Borough of
Manhattan in The City of New York.
(r) The
Company is not, and immediately after receipt of payment for the Shares,
the
Company will not be, an “investment company” within the meaning of the US
Investment Company Act of 1940, as amended.
(s) Assuming
the accuracy of the Purchasers’ representations and warranties set forth in
Section 8 hereof, no registration under the Securities Act is required for
the
offer and sale of the Shares by the Company to the Purchasers as contemplated
hereby.
8.
Representations,
Warranties and Covenants of the Purchasers.
Each
Purchaser, severally and not jointly, represents and warrants to, and covenants
with, the Company that:
(a) It
and
each of its designated registered holders of the Shares (i) is not a U.S.
person
(as defined in Regulation S) and (ii) is not purchasing for the account or
benefit of a U.S. person (as defined in Regulation S).
9
(b) It
(a) is
able to fend for itself in the transactions contemplated by this Agreement;
(b)
has such knowledge and experience in financial and business matters as to
be
capable of evaluating the merits and risks of its prospective investment
in the
Class A Shares or BDR Shares, as the case may be; and (iii) has the ability
to
bear the economic risks of its prospective investment and can afford the
complete loss of such investment.
(c) It
has
requested, received, reviewed and considered all information it deems relevant
in making an informed decision to subscribe to the Class A Shares or BDR
Shares,
as the case may be.
(d) It
understands that the Shares have not been registered under the Securities
Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with the registration
requirements of the Securities Act or an exemption therefrom.
(e) It
is
subscribing the number of Class A Shares or BDR Shares, as the case may be,
set
forth in Section 3 in the ordinary course of its business and for its own
account for investment only and with no present intention of distributing
any of
such Shares or any arrangement or understanding with any other persons regarding
the distribution of such Shares.
(f) It
will
not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of (or solicit offers to buy, purchase or otherwise acquire or take a pledge
of)
any of the Shares, except in compliance with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(g) In
connection with its decision to subscribe to the number of Class A Shares
or BDR
Shares, as the case may be, set forth in Section 3, it has not relied on
any
information or advice furnished by or on behalf of Xxxxxx Xxxxxxx & Co.
Incorporated.
(h) It
acknowledges that the certificates evidencing the Shares will be imprinted
with
a legend in substantially the following form (and a stop-transfer order may
be
placed against transfer of the certificates for the Shares):
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED. (A) THE SECURITIES MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED
WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS
IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID
ACT
UNTIL THE PASSAGE OF 40 DAYS FROM OCTOBER 20, 2008, UNLESS THE SECURITIES
ARE
OTHERWISE SOLD, TRANSFERRED OR ASSIGNED IN COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS.
TERMS
USED ABOVE HAVE THE MEANING GIVEN TO THEM BY REGULATION S
AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.”
10
(i) This
Agreement has been duly authorized, executed and delivered by it, and is
a valid
and binding agreement of, enforceable in accordance with its terms, subject
to
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and general principles of equity.
(j) It
will
not, if prohibited by law or regulation, sell, offer to sell, solicit offers
to
buy, dispose of, loan, pledge or grant any right with respect to (collectively,
a “Disposition”),
the
Class A Shares or BDR Shares, nor will it engage in any hedging or other
transaction which is designed or could reasonably be expected to lead to
or
result in a Disposition of Class A Shares or BDR Shares, as the case may
be by
it or any person or entity to the extent that such transaction is prohibited
by
applicable law or regulation.
(k)
It
will not, without the prior written consent of the Company, during the period
ending 180 days after the Closing Date, (1) offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any of the Class
A
Shares or BDR Shares, as the case may be, or securities convertible into
or
exchangeable or exercisable for the Class A Shares or BDR Shares, or warrants
or
other rights to purchase the Class A Shares or BDR Shares, or publicly disclose
the intention to make any offer, sale, pledge, disposition or filing; or
(2)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of the Class A Shares
or
BDR Shares, whether any such transaction described in clause (1) or (2) above
is
to be settled by delivery of the Class A Shares or BDR Shares, in cash or
otherwise.
(l) Notwithstanding
anything to the contrary set forth herein, the restrictions on transfer or
other
disposition set forth in this Section 8 shall be of null and void and of
no
effect (except as required by applicable law or regulation) unless the Principal
Shareholder Shares are subject to restrictions on transfer or other disposition
that are at least as onerous.
11
(m) It
will
hold in confidence all information concerning this Agreement and the placement
of shares hereunder until the earlier of such time as the Company has made
a
public announcement concerning this Agreement and the placement of Shares
hereunder, or this Agreement is terminated.
(n) It
acknowledges that the Class A Common Stock is listed on the NYSE and the
Company
is required to file reports containing certain business and financial
information with the Commission pursuant to the reporting requirements of
the
Exchange Act, and that it is able to obtain copies of such reports.
(o) It
has
full right, power, authority and capacity to enter into this Agreement and
to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement.
(p) It
understands that nothing in this Agreement, the Company’s public filings with
the Securities and Exchange Commission or any other materials presented to
it in
connection with the purchase and sale of the Class A Shares or BDR Shares,
as
the case may be, constitutes legal, tax or investment advise. It has consulted
such legal, tax and investment advisors as it, in its sole discretion, has
deemed necessary or appropriate in connection with its purchase of the Class
A
Shares or BDR Shares and has made its own assessment and has satisfied itself
concerning the relevant tax and other economic considerations relevant to
its
investment in the Class A Shares or BDR Shares.
(q) It
represents that based on the Company having 249,027,666 shares of voting
securities outstanding at the Closing Date (after giving effect to the sale
and
purchase of Shares pursuant to this Agreement and assuming that no Participating
Shareholder (other than the Principal Shareholder) exercises the Preemptive
Rights Option on or prior to the Preemptive Rights Option Exercise Date),
it,
together with any of its Affiliates, will not hold 15% or more of the Company’s
outstanding voting securities as a result of the sale and purchase of Shares
pursuant to this Agreement.
9.
Subscription of Shares by the Principal Shareholder. The
Principal Shareholder shall
subscribe to 6,329,114 shares of Class A Common Stock (the “Principal
Shareholder Shares”).
10.
Publicity.
Subject
to the Purchasers’ prior consent, which consent shall not be unreasonably
withheld, the Company will publish simultaneously press releases in the U.S.
and
Brazil in connection with the acquisition of Shares by the
Purchasers.
12
11.
Termination of Conditions and Obligations.
The
conditions precedent imposed by Section 8 upon the transferability of the
Shares
shall cease and terminate as to any particular number of the Shares (and
any
legend on the Shares will be removed by the Company) at such time as an opinion
of counsel satisfactory to the Company shall have been rendered to the effect
that such conditions are not necessary in order to comply with the Securities
Act and, in any event, shall terminate 180 days after the Closing
Date.
12. Placement
Agent's Fee.
The
Purchasers acknowledge that the Company intends to pay to Xxxxxx Xxxxxxx
&
Co. Incorporated, in its capacity as the placement agent for the Shares,
a fee
in respect of the sale of the Shares to the Purchasers. Each of the parties
to
this Agreement hereby represents that, on the basis of any actions and
agreements by it, there are no other brokers or finders entitled to compensation
in connection with the sale of the Shares to the Purchasers.
13. Termination.
This
Agreement may be terminated by any party hereto by written notice to the
other
parties, if the Closing has not been consummated by the 60th
day
following the date of this Agreement;
provided,
however,
(i)
that the right to terminate this Agreement under this Section shall not be
available to any party whose failure to fulfill any obligation under this
Agreement shall have been the cause of, or shall have resulted in, the failure
of the Closing to occur on or prior to such date and (ii) that no such
termination will affect the right of any party to xxx any other party for
breach
of this Agreement by such other party (or parties).
14. Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, by telecopier, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and
shall
be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation,
if made by telecopier, (iii) one (1) business day after being deposited with
such courier, if made by overnight courier or (iv) on the date indicated
on the
notice of receipt, if made by first-class mail, to the parties as
follows:
(a) if
to the
GIF, to:
GIF
Venus, Ltd.
Xxx
Xxxx
Xxxxxxxx, 000, 0xx
floor
Xxx
xx
Xxxxxxx, XX, 00000-000
Xxxxxx
Attn:
Xxxx X. Xxxxx
Xxxxxxxxxxx
X. Xxxx
Helio
Xxxxxx Xxxxx
Tel:
x00-00-0000-0000
Facsimile:
x00-00-0000-0000
13
(b) if
to the
Bradseg, to:
Bradseg
Fundo de Investimento Multimercado
C/O:
Gávea Investimentos Ltda.
Xxx
Xxxx
Xxxxxxxx, 000, 0xx
floor
Xxx
xx
Xxxxxxx, XX, 00000-000
Xxxxxx
Attn:
Xxxx X. Xxxxx
Xxxxxxxxxxx
X. Xxxx
Helio
Xxxxxx Xxxxx
Tel:
x00-00-0000-0000
Facsimile:
x00-00-0000-0000
(c) if
to the
Company, to:
Cosan
Limited
Av.
Presidente Xxxxxxxxx Xxxxxxxxxx 1726, 6th Floor
São
Paulo, SP Brazil 04543-000
Attn:
Xxxxx Xxxxx, Chief Financial Officer
Tel:
00-00-0000-0000
Facsimile:
00-00-0000-0000
With
a
copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxxxxx, Esq.
Tel:
000-000-0000
Facsimile:
000-000-0000
or
to
such other address as such person may have furnished to the other persons
identified in this Section 14 in writing in accordance herewith.
15.
Confidentiality.
(a)
Each Purchaser agrees that Confidential Information furnished and to be
furnished to it was and shall be made available in connection with the
Purchaser’s investment in the Company. Each Purchaser agrees that it shall use,
and that it shall cause any Person to whom Confidential Information is disclosed
pursuant to clause (i) below to use, the Confidential Information only in
connection with its investment in the Company and not for any other purpose.
Each Purchaser further acknowledges and agrees that it shall not disclose
any
Confidential Information to any Person. “Person”
shall
mean an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization.
14
“Confidential
Information”
means
any information concerning the Company or any subsidiary of the Company or
the
financial condition, business, operations or prospects of the Company or
any
subsidiary in the possession of or furnished to any Purchaser (including
by
virtue of its right to designate a director or “observer” of the Company);
provided
that
“Confidential Information” does not include information that (i) is or becomes
generally available to the public other than as a result of a disclosure
by the
Purchasers or their Representatives in violation of this Agreement, (ii)
is or
was available to the Purchasers on a non-confidential basis prior to its
disclosure to the Purchasers or their Representatives by the Company or (iii)
is
independently developed by the Purchasers or their Representatives without
violating any confidentiality agreement with, or other obligation of secrecy
to,
the Company.
16. Severability.
If any
term provision, covenant or restriction of this Agreement is held to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby,
and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction, it being intended that
all of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
17. Modification;
Amendment.
The
provisions of this Agreement, including the provisions of this sentence,
may not
be amended, modified or supplemented unless pursuant to an instrument in
writing
signed by the Company and the Purchasers.
18. Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and is intended to be a complete and exclusive statement of the agreement
and
understanding of the parties hereto with respect to the subject matter contained
herein. Except as provided in this Agreement, there are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to
herein, with respect to such matters. This Agreement supersedes all prior
agreements and undertakings among the parties with respect to such matters.
No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement.
15
19.
Counterparts.
This
Agreement 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.
20. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
21. Jurisdiction.
Each
of
the
Company, Rubens Ometto Xxxxxxxx Xxxxx, GIF and Bradseg hereby submits to
the
non-exclusive jurisdiction of the U.S. federal and New York state courts
sitting
in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. Each of the Company, GIF and Bradseg irrevocably appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 as its authorized agent in
the
Borough of Manhattan in The City of New York upon which process may be served
in
any such suit or proceeding, and agrees that service of process upon such
agent,
and written notice of said service to the Company, GIF or Bradseg by the
person
serving the same to the address provided in Section 15, shall constitute
effective service of process upon the Company, GIF or Bradseg, as the case
may
be, in any such suit or proceeding. The
Purchasers and the Company (each on its behalf and, to the extent permitted
by
applicable law, on behalf of its affiliates) waive all right to trial by
jury in
any action, proceeding or counterclaim (whether based upon contract, tort
or
otherwise) in any way arising out of or relating to this
Agreement.
22. Registration
of Shares. The
Purchasers will provide the Company prior to the Closing Date the name of
the
entities in which the Shares should be registered upon Closing. Such entities
must not be U.S. persons as defined in Regulation S under the Securities
Act.
23. Headings.
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
16
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
GIF VENUS, LTD | ||
|
|
|
By: | /s/ Xxxx Xxxxxxxx Xxxxx | |
Name: Xxxx
Xxxxxxxx Xxxxx
Title:
Director
Tax
ID No.:
Contact
Name:
Telephone:
|
||
BRADSEG FUNDO DE INVESTIMENTO MULTIMERCADO | ||
|
|
|
By: | /s/ Xxxx Xxxxxxxx Xxxxx | |
Name: Xxxx
Xxxxxxxx Xxxxx
Title:
Director
Tax
ID No.:
Contact
Name:
Telephone:
|
||
17
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
|
||
Agreed
to
and Accepted by:
RUBENS OMETTO XXXXXXXX XXXXX | ||
|
|
|
By: | /s/ Rubens Ometto Xxxxxxxx Xxxxx | |
|
||
18