|
Form
20-F
|
X
|
Form
40-F
|
|
Yes
|
No
|
X
|
|
Yes
|
No
|
X
|
|
Yes
|
No
|
X
|
|
Exhibit
|
||
|
4.3
|
Agreement for the
Sale
a
nd Purchase of all of the Member
Interests in Parent Co-Operative 1 and Parent
Co-Operative 2 dated
April 23, 2008, between ExxonMobil
International Holdings B.V., as vendor, and the registrant
’
s subsidiaries Cosan S.A.
I
n
dú
stria e
Comé
rcio and Usina da Ba
rra S.A. Açú
car e Á
lcool, as purchasers
*
|
|
*
|
Portions
of this exhibit have been omitted pursuant to a request for confidential
treatment.
|
|
COSAN
LIMITED
|
|||||
|
Date:
|
June
10, 2009
|
By:
|
/s/
Marcelo Eduardo Martins
|
||
|
Name:
|
Marcelo
Eduardo Martins
|
||||
|
Title:
|
Chief
Financial Officer and Investor Relations
Officer
|
||||
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
4
|
|
2.
|
SALE AND
PURCHASE
|
17
|
|
3.
|
CONSIDERATION
|
18
|
|
4.
|
CONDITIONS
PRECEDENT AND COMPLETION DATE
|
22
|
|
5.
|
WARRANTIES
AND OTHER MATTERS
|
30
|
|
6.
|
INDEMNIFICATION
|
61
|
|
7.
|
TRADEMARKS
|
64
|
|
8.
|
PERSONNEL
|
64
|
|
9.
|
INSURANCE -
EXXONMOBIL POLICIES
|
66
|
|
10.
|
INFORMATION
|
67
|
|
11.
|
COPYRIGHTS,
PATENTS, KNOWHOW AND ITY OF SYSTEM INFORMATION
|
68
|
|
12.
|
PURCHASE
PRICE ADJUSTMENTS; EARNOUT PAYMENTS
|
68
|
|
13.
|
TAXES AND
REGISTRATION AND OTHER DUTIES
|
72
|
|
14.
|
COSTS
|
79
|
|
15.
|
APPLICABLE
LAW AND DISPUTE RESOLUTION
|
79
|
|
16.
|
BUSINESS
ETHICS
|
80
|
|
17
|
EXPORT
CONTROLS AND TRADE SANCTIONS
|
81
|
|
18.
|
ENTIRE
AGREEMENT
|
82
|
|
19.
|
ASSIGNMENT
|
82
|
|
20.
|
NOTIFICATIONS
|
83
|
|
21.
|
VARIATIONS
|
85
|
|
22.
|
COUNTERPARTS
|
85
|
|
23.
|
EFFECT OF
COMPLETION
|
85
|
|
24.
|
FURTHER
ASSURANCE
|
86
|
|
25.
|
EQUITABLE
REMEDIES
|
86
|
|
26.
|
REMEDIES AND
WAIVERS
|
86
|
|
27.
|
NO THIRD
PARTY BENEFICIARIES
|
87
|
|
28.
|
SEVERABILITY
|
87
|
|
29.
|
OBLIGATIONS
OF THE PARTIES
|
87
|
|
Exhibit A
-
|
Confidential
Information Memorandum (and addenda thereto)
|
|
Exhibit B
-
|
Form of Fuels
Trademark License Agreement
|
|
Exhibit C
-
|
Form of
Master Lubes Agreement
|
|
Exhibit D
-
|
Form of Power
of Attorney
|
|
Exhibit E
-
|
Forms of Ilha
Lease and Cost Sharing Agreement
|
|
Exhibit F
-
|
Intralinks
Log
|
|
Exhibit G
-
|
Virtual Data
Room
|
|
Exhibit H
-
|
Physical Data
Room
|
|
Exhibit I
-
|
Q&A
|
|
Exhibit J
-
|
Management
Presentations
|
|
(1)
|
EXXONMOBIL
INTERNATIONAL HOLDINGS B.V.
, a company incorporated under the
laws of the Netherlands
,
and having a place of business at
75 Graaf Engelbertlaan, Breda, 4837 DS, the Netherlands (hereafter
referred to as
“ExxonMobil
International Holdings”
);
|
|
(2)
|
COSAN
S/A INDUSTRIA E COMERCIO
,
a company incorporated under the
laws of Brazil, and having a place of business at Av. Juscelino
Kubitschek, 1726 – 6th Floor, 04543-000 Sao Paulo, SP, Brazil, (hereafter
referred to, together with any of its permitted assignees, as
“Purchaser
1”
;
and
|
|
(3)
|
USINA DA
BARRA S.A. AÇÚCAR E ÁLCOOL
,
a company incorporated under the
laws of Brazil, and having a place of business at Av. Juscelino
Kubitschek, 1726 – 6th Floor, 04543-000 Sao Paulo, SP, Brazil, (hereafter
referred to, together with any of its permitted assignees, as
“Purchaser
2”
and, together with
Purchaser 1, the
“Purchasers”
; the Vendor and the Purchasers
are each referred to as a "
Party
" and, collectively, as the
"
Parties
");
|
|
|
A.
|
ExxonMobil International Holdings
owns, directly or indirectly, 100% of the issued and outstanding shares
(or other applicable equity interests) of the Persons identified in
Schedule 1.1(a) (hereafter referred to collectively as the
"Companies"
and any one of the
Companies, a
"Company"
);
|
|
|
B.
|
The Parties intend that, as
promptly as practicable after the execution of this Agreement, ExxonMobil
International Holdings shall cause (i) to be duly and validly organized
two companies incorporated as cooperative
associations with
exclusion of liability (
coöperatief U.A. (uitsluiting
aansprakelijkheid
))
under the laws of the Netherlands
(
“Parent
Co-Operative I”
)
and (
“Parent
Co-Operative II”
)
(hereafter referred to, collectively, as the
“Parent
Co-Operatives”
) with
ExxonMobil International Holdings and its wholly owned subsidiary
(“
ExxonMobil
International Subsidiary
”) (ExxonMobil International
Holdings and ExxonMobil International Subsidiary hereafter referred to,
collectively, as the “
Vendor
”) owning all of the member
interests in each of the Parent Co-Operatives and (ii) in the proper
manner, the Parent Co-Operatives to own, directly or indirectly, 100% of
the issued and outstanding shares or other applicable equity interests in
each of the Companies;
|
|
|
C.
|
Exxon Mobil Corporation, on behalf
of the Vendor, and Purchaser 1
have
|
|
|
entered into a Confidentiality Agreement dated September 28, 2007 (the “ Confidentiality Agreement ”); and |
|
|
D.
|
On the terms and subject to the
conditions contained herein, the Vendor desires to sell to the Purchasers
and the Purchasers desire to purchase from the Vendor the membership in
each of the Parent Co-Operatives, with all rights and obligations attached
thereto, including but not limited to the rights and obligations towards
each of the Parent Co-Operatives as to the balance of each of the
corresponding member accounts and the rights and obligations towards each
of the Parent Co-Operatives under each of the corresponding member
agreements (collectively,
“Sale Member
Interests”
).
|
|
1.1
|
In this Agreement, unless there is
something inconsistent in the subject or the context, the following words
and expressions shall have the meanings as set out
below:
|
|
|
"Acceptable
Financial Standards"
means possessing a sound financial reputation and a history of providing
quality service and meeting the minimum criterion of a long-term debt
rating of at least "A" by Standard & Poor's or at least "A2" by
Moody's Investors Service;
|
|
|
"
Accounts
"
means the audited balance sheet
and profit and loss account identified on Schedule 1.1(a), including the
reports, notes and documents annexed
thereto;
|
|
|
"
Accounts
Date
" means
31
st
December
2006;
|
|
|
"
Adequate
Security
" means
irrevocable standby letters of credit or commercial bank guarantees, in a
form reasonably acceptable to the Vendor, obtained by the Purchasers from
financial institutions (a) meeting Acceptable Financial Standards and (b)
having a net worth of at least five times the secured
amount. For the purpose of this definition the 'secured amount'
shall constitute Twenty Million Six Hundred Fifty Thousand U.S. Dollars
($20,650,000);
|
|
|
"
Business
Day
" means any day
when deposit-taking banks are open in Sao Paulo, Brazil, New York, New
York and Amsterdam, the Netherlands for the business of over-the-counter
deposit-taking;
|
|
|
“Claims"
means
any suit, claim, action or
litigation by or with any Person or any administrative, arbitration or
governmental proceeding, investigation or inquiry affecting the
Companies
.
|
|
|
"
Completion
" means completion of the sale and
purchase of the Sale Member Interests in accordance with the provisions of
this Agreement;
|
|
|
"
Completion
Date
" means the date
when the Completion is to occur, as determined under Clauses 3.2 and 4.6,
provided that the Completion Date shall in any event occur on the first
calendar day of a month;
|
|
|
"
Completion
Memorandum
" means a
document, reasonably acceptable to the Parties, to record the Completion
in accordance with Clause
4.13;
|
|
|
"
Conditions
Precedent
" means each
of the conditions set out in Clause 4.1 and Clause
4.2;
|
|
|
"Confidential
Information
Memorandum
" means the
original confidential information memorandum and subsequent addenda
identified as Exhibit A;
|
|
|
“Copyrights”
means all
rights, whether registered or not, which are or may be asserted as subject
to protection under the copyright Legislation of the applicable Countries
or the copyright laws of any foreign country,
that are owned or controlled (in
the sense of having the right to grant licences thereunder without
accounting to others) by Vendor or its
Affiliates
;
|
|
|
“Country”
means any
country where the Companies operate, as applicable, as set forth on
Schedule 1.1(a);
|
|
|
"Current
Accounts Period"
means the period starting and including 1st January 2007 up to and
including Completion;
|
|
|
"
Employees"
means all employees
of the Companies at the time of Completion, other than the
Employees-Out-Of-Scope;
|
|
|
"
Employees-Out-Of-Scope
" means the BSC, Impats, employees
to be transferred to the upstream Affiliate of the Vendor and hold-back
employees
whose
employment agreements with the Companies will be transferred, with the
employees’ consent, if required, to another Affiliate of the Vendor during
the Interim Period subject to all permits and approvals and Legislation
and individual agreements where applicable. Employees that
remain with the Companies as of the Completion Date will be identified in
advance of Completion;
|
|
|
"
Encumbrances
" means all
liens, pledges,
debentures, hypothecations, security interests, retentions of title,
options, rights of first refusal, rights of pre-emption, claims,
easements, mortgages, charges, indentures, deeds of trust, rights of way,
restrictions on the use of real property, encroachments, licenses to third
parties, leases to third parties, security agreements, or any other
encumbrances and other restrictions or limitations on use of real or
personal property or irregularities in title thereto
;
as used herein personal
|
| property shall not include Trademarks, Copyrights, Knowhow, or Patent Rights ; |
|
|
"
Environment
" means living organisms
(including humans and the ecological systems of which they form a part)
and the following media (alone or in combination): air (including without
limitation air within buildings and air within other natural or man-made
structures, whether above or below ground); water (including without
limitation water on, under or within land, or in drains or sewers, and
coastal and inland waters); and land (including land under water); and in
the case of man includes his
property;
|
|
|
"
Environmental
Laws
" means all
applicable laws and legislation (including, but not limited to,
liabilities pursuant to relevant civil law, common law and all statutes,
codes, directives and the like and all rules, regulations, orders or
statutory guidance made thereunder) concerning Environmental
Matters;
|
|
|
"
Environmental
Liabilities
" means
losses, costs, expenses (including any irrevocable value added taxes
thereon), actions, proceedings, claims, demands, damages and any liability
under Environmental Laws in relation to Environmental Matters, including
any liability (whether actual or contingent) to investigate, make good,
repair, reinstate, treat, clean up or otherwise remediate any of the
Property or Hazardous Substances elsewhere which have emanated from the
Property or any equipment of the Companies or which have arisen from
activities or non-performance of the Companies or for which the Companies
are held responsible, including at any property at any time owned or
occupied or made use of by the Companies and irrespective whether the
cause for the liability has been known or should have been known or
understood by the Companies or their directors or agents or employees and
irrespective if the cause of the liability has been hidden or
not;
|
|
|
"
Environmental
Matters
" means
any matter arising out of or relating to the Environment, like
pollution of the
Environment, including but not limited to noise, emissions, deposits,
discharges, spills and releases of Hazardous Substances into air, water,
sewage systems and land and the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, transmission and handling of
Hazardous Substances or matters otherwise relating to the health and
safety of any person or damage to the environment, property or
assets;
|
|
|
"
Excluded
Business[es]
" means
the business[es] and Trademarks of the Companies described on Schedule
1.1(b) hereto, which are excluded from the sale and which prior to
Completion will be sold or transferred to the Vendor or one of its
Affiliates without further obligations of the
Companies;
|
|
|
"
Excluded
Business Tax Claims
"
means Tax
Claims by Public Authorities in the Countries against the
Purchasers or a Company (or by a Company against such Public Authorities),
to the extent related to an Excluded Business and those listed
on Schedule 1.1(g)
;
|
|
|
"
Exxon Mobil
Corporation
" means
Exxon
Mobil Corporation, a company incorporated in New Jersey, USA with its
principal place of business at
5959
Las Colinas Boulevard, Irving, Texas, USA
;
|
|
|
"
ExxonMobil
Policies
" means all
of the insurance policies through which the world wide programme of
insurance coverage is presently or has previously been provided by or to
Exxon Mobil Corporation, its predecessors or Affiliates for the benefit of
the Companies, including policies issued to Exxon Mobil
|
|
Corporation
or its predecessors, policies issued directly to Affiliates by one of the
ExxonMobil Captive Insurers and policies issued to Affiliates by locally
admitted insurers who are reinsured by one of the ExxonMobil Captive
Insurers;
|
|
|
"
Inter-Affiliate
Payables
" means any amount, including interest-bearing loans, owing
as of the close of business on the Business Day immediately preceding the
Completion Date by any of the Companies to the Vendor or any of its
Affiliates (excluding the Companies) (and, in the case of the
Inter-Affiliate Notes Payable, assuming that they would be repaid at such
time), however arising, including interest thereon to the extent provided
by the applicable terms of such loans, and whether or not then due for
payment, in each case calculated in good faith and in a manner consistent
with the past practices of the
Companies;
|
|
|
"
Inter-Affiliate
Receivables
" means
any amount, including interest-bearing loans, owing as of the close of
business on the Business Day immediately preceding the Completion Date by
the Vendor or any of its Affiliates (excluding the Companies) to any of
the Companies, however arising, including interest thereon, to the extent
provided by the applicable terms of
|
|
such loans,
and whether or not then due for payment, in each case calculated in good
faith and in a manner consistent with the past practices of the
Companies;
|
|
|
"
Interim
Period
" means the
period from the date of this Agreement until
Completion;
|
|
|
"
Longstop
Date
" means fifteen
(15) calendar months from the date of this Agreement, subject to extension
as provided in Clause 4.4 hereof
;
|
|
|
“
Order
” shall mean any
judgment, order, injunction, decree, writ, permit or license of any Public
Authority or binding arbitration;
|
|
|
"
Pension
Plan
" means the
ExxonMobil Plan;
|
|
|
"
Person
" includes trusts, natural
persons, firms or partnerships, companies, corporations or other entities
which are given, or are recognised as having, legal personality by the law
of any jurisdiction, country, state or territory, unincorporated bodies
and associations (including, without limitation, joint ventures and
consortia), any emanation of a sovereign state or government, whether
national, provincial, local or otherwise, any international organisation
or body (whether or not having legal personality), and any other juridical
entity, in each case wherever resident, domiciled, incorporated or
formed;
|
|
|
"
Property
" means all real property,
including land and buildings on the land, owned or leased or otherwise
occupied or controlled by the Companies at any
time;
|
|
|
"
Purchase
Price
" means Eight
Hundred Twenty-Six Million U.S. Dollars ($826,000,000), as adjusted in
accordance with the provisions of Clause
12;
|
|
|
"
Redundancy
Terms
" means the
redundancy terms of the Companies as described in Schedule
1.1(f);
|
|
|
"System
Information"
means
all financial and business information of the Companies that is held in
systems of the Vendor or Affiliates of the Vendor or which are part of any
service agreements made by the Companies with service providers and which
form part of the regulatory bookkeeping obligations of the
Companies;
|
|
|
"
Tax
Liabilities
" means
losses, costs, expenses, actions, proceedings, claims, demands, damages
and any other liability in relation to Taxes, including legal costs,
interest and penalty fees;
|
|
|
"
Three Month
Dollar LIBOR
" means
in relation to any day in respect of which an interest rate is to be
determined:
|
|
|
(i)
|
the three (3) month London
Interbank offered rate for deposits in US Dollars which is quoted on the
"LIBOR03" page on the Reuters Monitor Money Rates Service (or such other
page as may replace such page on such service for the purpose of
displaying London Interbank offered rates for deposits in Dollars) at or
about 11.00 a.m. London time on the relevant day;
or
|
|
|
(ii)
|
if no such rate is quoted at the
relevant time, the arithmetic mean (rounded upwards to four decimal
places) of the rates quoted by the principal London offices of Lloyds TSB
Bank plc, Barclays Bank plc and HSBC Bank plc to prime banks in the London
Interbank market at or about 11.00 a.m. London time on the relevant day
for three (3) month deposits in Dollars
or,
|
|
|
if the rates in (i) and (ii) are,
for any reason, not available in respect of the relevant periods, such
comparable rate as the Parties may agree in good
faith;
|
|
|
"
Trademarks
" means petroleum related service
marks, trademarks, logos, emblems, trade dress and other indicia of
origin, including the names and marks ESSO, EXXONMOBIL, EXXONMOBIL
AVIATION, the Tiger Design, MOBIL, and such other names, domain
names
,
marks, logos, emblems, trade
dress, and other indicia of origin as Exxon Mobil Corporation and its
Affiliates may from time to time own in connection with marketing the
petroleum products and associated services, including convenience store
services
as of
Completion Date and that are
registered or applied for in the name
of the
Vendor or its
Affiliates
or
controlled by the Vendor or its Affiliates
;
|
|
|
"
Warranties
" means the representations and
warranties referred to as such and set out in Clause 5.2 of this Agreement
and "Warranty" is to be construed accordingly;
and
|
|
|
"
Warranty
Termination Date
"
means the date that is eighteen months after the Completion Date, except
with respect to any Warranty that, pursuant to the terms of this
Agreement, expressly survives later than such date, in which case the
Warranty Termination Date in respect of such Warranty shall be such later
date.
|
|
1.2
|
Additional Defined
Terms
. In addition to the terms defined in Clause 1.1,
the following terms shall have the respective meanings assigned thereto in
the Clauses indicated below.
|
|
Defined
Term
|
Clause
|
|
Affiliated
Company
|
1.1
|
|
Applicable
Earn Out Period
|
12.6(a)
|
|
Assignable
|
Schedule
5.18, §3.1
|
|
Assigned
Aviation Contract
|
Schedule
5.18, §3.5
|
|
Aviation
Contract(s)
|
Schedule
5.18, §2.3
|
|
Code
|
5.2.18
|
|
Companies
|
Recitals
|
|
COFINS
|
1.1
|
|
Competing
Business
|
5.17(a)(ii)
|
|
Completion
Purchase Price Adjustments
|
3.4
|
|
Completion
Notice
|
3.2(a)
|
|
Completion
Values
|
3.4
|
|
Confidentiality
Agreement
|
Recitals
|
|
Contract
|
5.2.2(a)
|
|
Dealer
Reassurance Program
|
5.14(c)(iii)
|
|
Earn-out
Payment
|
12.6(b)
|
|
Defined
Term
|
Clause |
|
Vendor
|
Recitals
|
|
WHT
Liability
|
6.2(a)
|
|
WHT Liability
Claim
|
6.2(a)
|
|
1.3
|
Except where the context requires
otherwise or where there would be a conflict with the express terms of
this Agreement, references to any Legislation or provision of any
Legislation shall be construed as references to that Legislation or
provision as re-enacted, amended, extended, consolidated or replaced from
time to time, and include any Order, regulation, instrument or subordinate
legislation made under the relevant
Legislation.
|
|
1.4
|
The table of contents and headings
in this Agreement are for convenience only and shall not affect the
construction of this
Agreement.
|
|
1.5
|
Except where the context requires
otherwise, or where there would be a conflict with the express terms of
this Agreement, references in this Agreement to clauses, paragraphs,
exhibits and schedules are to clauses of, paragraphs of and schedules to
this Agreement. The exhibits and schedules form part of this
Agreement.
|
|
1.6
|
In this Agreement, the use of one
gender shall include the other, and the singular number shall include the
plural and vice versa. For the avoidance of doubt, the use of
the word “Companies” shall mean any or all of the Companies and the use of
the word “Purchasers” shall mean any or all of
them.
|
|
1.7
|
All periods which are expressed to
commence on one date and end on another, or to fall between two dates, are
inclusive of both those dates. All dates and periods of time
referred to in this Agreement, or which are to be calculated as a result
of any provision of this Agreement, are dates and periods by reference to,
and are to be calculated by reference to, the Gregorian
calendar.
|
|
1.8
|
In this Agreement, references to a
time of day are to New York time, unless expressly provided otherwise, and
references to a day are to a period of twenty-four (24) hours running from
midnight on the previous
day.
|
|
1.9
|
Except where the context requires
otherwise, or where there would be a conflict with the express terms of
this Agreement, in this Agreement the terms "writing" and "written" both
include facsimile transmissions, telex, cable, telegrams and all other
methods of reproducing or communicating in visible and permanent
form.
|
|
1.10
|
“Include,”
“includes,” and “including” are deemed to be followed by “without
limitation” whether or not they are in fact followed by such words or
words of similar import.
|
|
1.11
|
The expressions
“ordinary
course of business” or “business in the ordinary course” mean the
ordinary
and usual course
of business of the Companies, consistent (including nature and scope) with
the prior practice of the
Companies.
|
|
2.1
|
At Completion, subject to the
provisions of this Agreement, (i) the Vendor shall sell to Purchaser I,
and Purchaser I shall purchase from the Vendor, its Sale Member Interest
in each Parent Co-Operative and (ii) the Vendor shall sell to Purchaser
II, and Purchaser II shall purchase from the Vendor, its Sale Member
Interests (other than the Sale Member Interests that are sold to Purchaser
I pursuant to clause (i) of this Clause 2.1) in each Parent Co-Operative,
in each case free from any
Encumbrances.
|
|
2.2
|
At Completion, as part of this
transaction, the Vendor shall, to the extent permitted by applicable
Legislation, procure that the Companies pay the Inter-Affiliate Payables
as of the close of business on the Business Day immediately preceding the
Completion Date (including interest accrued thereon, to the extent
provided by the applicable terms of such Inter-Affiliate
Payables).
The Purchasers shall
provide to the applicable Companies adequate financ
ing or shall work with the
applicable Companies and the Vendors to procure third party financing, if
required, such that the Inter-Affiliate Payables (including interest
accrued thereon to the extent provided by the applicable terms) that are
in the form
o
f notes payable (the “
Inter-Affiliate Notes
Payable”
) may be
repaid as of the close of business on the Business Day immediately
preceding the Completion
Date.
|
|
2.3
|
At Completion, as part of this
transaction, the Vendor shall, to the extent permitted by applicable
Legislation, pay or shall procure that its Affiliates shall pay to the
Companies the Inter-Affiliate Receivables (including interest accrued
thereon, to the extent provided by the applicable terms of such
Inter-Affiliate Receivables).
The Vendor sh
all take the necessary steps to
ensure that any balance on deposit with Mobil Services Bahamas Limited is
paid to the Companies on or before the close of business on the last
Business Day immediately preceding the Completion Date (including interest
accru
e
d thereon, to the extent provided
by the applicable terms of the deposit
agreement).
|
|
3.1
|
(a) The consideration for
the sale of the Sale Member Interests shall be payment by the Purchasers
of the Purchase Price.
Payment of the Purchas
e Price shall be made by the
Purchasers on the Completion Date by means of a cash transfer of
immediately available funds, in U.S. Dollars, into Vendor
’
s Bank
Account.
|
|
|
|
(b)
|
The
Purchasers shall deliver to the Vendor the Adequate Security at the time
of signing this Agreement; provided however, that the Parties acknowledge
and agree that the Purchasers shall not be deemed in breach of this Clause
3.1(b) by virtue of the fact that Morgan Stanley Senior Funding, Inc.
(“
MSSF
”)
does not satisfy the definition of Adequate Financial Standards so long
as, within fourteen (14) days after the date hereof, either (a) the
obligations of MSSF under the letter of credit issued by MSSF and
delivered to Vendor at the time of signing this Agreement have been
guaranteed by a Person that satisfies the definition of Adequate Financial
Standards or (b) the Purchasers have delivered to Vendor either (i) a
replacement letter of credit, in an amount equal to the secured amount and
having terms and conditions substantially the same as the letter of credit
delivered to Vendor on the date hereof, issued by a financial institution
that satisfies the definition of Adequate Financial Standards or (ii) a
cash deposit in an amount equal to the secured amount, which shall
constitute the Adequate Security for all purposes of this
Agreement.
|
|
|
(c)
|
At Completion, the Vendor shall
procure that the Parent Co-Operatives agree with the transfer of the Sale
Member Interests to the Purchasers and the Purchasers shall cause the
appropriate amendments
to be made in any existing foreign
investment
registrations.
|
|
3.2
|
(a)
|
Subject to the provisions of this
Agreement, the Vendor shall give written notice (the
“Completion
Notice”
) to the
Purchasers at least thirty (30) Business Days prior to the anticipated
Completion Date. At any time after the receipt of the
Completion Notice and prior to the Completion Date, upon request of the
Purchasers, the Vendor shall provide the Purchasers with such written
information regarding the Gross Margins for the Gross Margin Periods,
including supporting documentation and calculations in such detail as the
Purchasers may reasonably request in order to determine whether the
condition set forth in Clause 4.1(k) has been satisfied. No
later than five (5) days prior to the anticipated Completion Date, but
subject to the satisfaction of each of the Conditions Precedent (other
than any such Conditions Precedent that, by their terms, are to be
satisfied on the Completion Date) the Vendor shall deliver to the
Purchasers a notice setting forth the proposed
|
|
Completion
Date and including a good faith calculation of: (i) the provisional
amounts of the Inter-Affiliate Payables that are, or are anticipated to
be, permitted to be paid under applicable Legislation (x) as of the close
of business on the Business Day immediately preceding the Completion Date
and (y) on any applicable later date, (ii) the provisional amounts of the
Inter-Affiliate Receivables
that are or are anticipated to be permitted to be paid under applicable
Legislation (x
) as of
the close of business on the Business Day immediately preceding the
Completion Date and (y) on any applicable later date
, (iii) the provisional amount of
any adjustments to the Purchase Price required pursuant to Clauses 12.1 -
12.5 (such provisional Purchase Price Adjustments, the
“Provisional
Purchase Price Adjustments”
), and (iv) the total Purchase
Price due at Completion reflecting the Provisional Purchase Price
Adjustments. In the event Vendor elects a day as the Completion
Date that is not a Business Day, then Parties agree that all actions to be
performed on the Completion Date, including but not limited to payment of
the amounts provided in Clause 3.3(a), shall be taken on the first
Business Day after that date and following such payment, which shall not
be considered as a late payment, the Sale Member Interests shall be
transferred retroactively on the Completion Date as per the Vendor's
notice.
|
|
|
(b)
The Completion shall take place at 10:00 a.m. (London time) on the
Completion Date at the offices of White & Case LLP, 5 Old Broad
Street, London, EC2N 1DN, England, or at such other time and place as the
Parties shall mutually
agree.
|
|
3.3
|
On the Completion
Date:
|
|
|
(a)
|
the Purchasers shall pay to the
Vendor’s Bank Account, for value, the Purchase
Price;
|
|
|
(b)
|
the Vendor shall, to the extent
permitted by applicable Legislation, procure that the Companies pay to the
Vendor’s Bank Account the provisional amount of the Inter-Affiliate
Payables as of the close of the business on the Business Day immediately
preceding the Completion Date, in accordance with Clause 3.2(a), subject
to later resolution of any dispute with respect to such provisional
amounts in accordance with Clause 3.4;
and
|
|
|
(c)
|
the Vendor or their
Affiliates shall,
to the extent permitte
d by applicable
Legislation,
pay to
the Companies’ Bank Account the provisional amount of the Inter-Affiliate
Receivables
(including interest accrued thereon, to the extent provided by the
applicable terms of such Inter-Affiliate Receivables) as set forth in the
statement delivered by the Vendor to the Purchasers in accordance with
Clause 3.2(a), subject to later resolution of any dispute with respect to
such provisional amounts in accordance with Clause
3.4.
|
|
3.4
|
Within thirty (30) days after the
Completion Date, the Vendor and the Purchasers shall cooperate in good
faith to determine (i) the amounts payable as of the close of business on
the Business Day immediately preceding the Completion Date of and/or
pursuant to Inter-Affiliate Payables and Inter-Affiliate Receivables,
taking into account any properly and duly documented Inter-Affiliate
Payables or Inter-Affiliate Receivables not identified in the provisional
schedule provided by the Vendor at Completion under Clause 4.6.1(j), (the
"Completion
Values"
) and (ii) the
final amounts of each of the Provisional Purchase Price Adjustments (the
“Completion
Purchase Price Adjustments”
).
|
|
|
1.
|
If the Completion Values and the
Completion Provisional Purchase Price Adjustments proposed by the Vendor
are not contested by the Purchasers, the Vendor or the Purchasers, as the
case may be, shall make payment to the relevant Party of any difference in
relation to the Completion Values and the Provisional Purchase Price
Adjustments paid under Clause 3.3, provided that the Inter-Affiliate
Payables and Inter-Affiliate Receivables in question are permitted to be
paid at the relevant time under applicable Legislation,
or, in the
case of Inter-Affiliate Payables, the Purchasers shall cause the Companies
to make such payment; or
|
|
|
2.
|
If the Completion Values and/or
the Completion Purchase Price Adjustments proposed by the Vendor are
contested by the Purchasers, the Purchasers shall submit their contests to
the Vendor and the Parties shall cooperate in good faith and try to
amicably settle their disagreement within the following ten (10) Business
Days. In the event of such a settlement, the Vendor or the
Purchasers, as the case may be, shall make payment within a further ten
(10) Business Days to the relevant Party of the agreed difference in
relation to the Completion Values and/or the Completion Purchase Price
Adjustments paid under Clause 3.3
or, in the case of
Inter-Affiliate Payables, Purchasers shall cause the Companies to make
such payment; or
|
|
|
3.
|
In the event
that the Parties are unable to settle all contests with respect to the
Completion Values and/or the Completion Purchase Price Adjustments within
the ten (10) Business Day period described in paragraph 2 above, any such
matters remaining in dispute shall be submitted to an office of KPMG LLP
(“
KPMG
“) in the
applicable Country. The Parties shall instruct such firm that
the determination of such firm with respect to such disagreement and the
Completion Values and/or Completion Purchase Price Adjustments as a result
of such determination shall be completed within thirty (30) days after the
submission to KPMG and such determination shall, absent manifest
|
|
error or
fraud, be final and binding upon the Purchasers and the Vendor, and the
Purchasers or the Vendor, as applicable, shall make payment to the other
Party, or, in the case of Inter-Affiliate Payables, Purchasers shall cause
the Companies to make such payment, in each case within ten (10) days
after the making of such determination. The fees, costs and
expenses of KPMG shall be shared equally by the Purchasers, on the one
hand, and the Vendor, on the other
hand.
|
|
3.5
|
The
Purchasers shall, or shall cause the Companies to, pay to the Vendor’s
Bank Account the amounts of any Inter-Affiliate Payables that were not
permitted to be paid by applicable Legislation as of the close of business
on the Business Day immediately preceding the Completion Date, within
three (3) Business Days after the date such Inter-Affiliate Payables are
permitted to be paid by applicable Legislation by either the
Purchasers or the Companies, as such amounts may be (or may have been)
adjusted or finally determined in accordance with Clause
3.4. T
he
Purchasers and the Vendor shall work together in good faith to procure and
pr
ovide the necessary
documents to cause any Inter-Affiliate Payables to be payable under
applicable Legislation.
|
|
3.
6
|
The Vendor shall pay or shall
procure that its Affiliates pay to the Companies
’
Bank Account the amounts of any
Inter-Affiliate Receivable
s that were not permitted to be
paid by applicable Legislation as of the close of business on the Business
Day immediately preceding the Completion Date, within three (3) Business
Days after the date such Inter-Affiliate Receivables are permitted to be
pa
i
d by applicable Legislation, as
such amounts may be
(or
may have been)
adjusted or finally
determined in accordance with Clause 3.4. The Purchasers and
the Vendor shall work together in good faith to procure and provide the
necessary documents to cause an
y Inter-Affiliate Receivables to
be payable under applicable Legislation.
In the event any Inter-Affiliate
Receivable has not been paid within ninety (90) days after the Completion
Date, the Vendor shall make payment to the Company
’
s Bank Account and the
a
pplicable Company
shall release the Vendor or its Affiliate, as the case may be, from any
further liability with respect to the balance in
question.
|
|
3.7
|
If any amount
required to be paid under this Agreement is not received by its due date,
then such amount shall bear interest at the rate of Three Month Dollar
LIBOR plus 4% per annum, compounded on the last day of each calendar month
from time to time, calculated on a daily basis and for the period from the
relevant due date for payment up to and including the date of actual
payment, after as well as before
judgment.
|
|
3.8
|
In the event
it is necessary to determine the Dollar equivalent of any Inter-Affiliate
Payable or Inter-Affiliate Receivable denominated in Reais, the Parties
agree the exchange rate to be used will be the "average of the sale
|
|
rates" issued
by the Central Bank of Brazil through the SISBACEN data system under PTAX
800, Option 5 and Currency 220 on the Business Day prior to any relevant
payment date or, if the rate is not available in respect of the relevant
periods for any reason, such comparable rate as the Parties may
agree. For the avoidance of doubt, for the determination of the
provisional Inter-Affiliate Payables and Inter-Affiliate Receivables to be
delivered on the Completion Date in accordance with Clause 3.2(a), the
same source of exchange rates will be used as applicable at the last
Business Day of the month before preparing the provisional statement of
Inter-Affiliate Payable and Inter-Affiliate Receivable
balances.
|
|
4.1
|
The
Purchasers’ obligation to purchase the Sale Member Interests and to
perform the Purchasers’ other obligations at Completion
is subject to the satisfaction (or
waiver in writing by the Purchasers) at or prior to Completion,
of
the following conditions:
|
|
4.2
|
The Vendor’s
obligation to
sell the Sale Member Interests and to perform the Vendor’s other
obligations at Completion
is
subject to the satisfaction (or waiver in writing by the Vendor), at or
prior to Completion,
of the following
conditions:
|
|
4.3
|
The Vendor and Purchasers shall
each use their commercially reasonable endeavours to procure the timely
satisfaction of the applicable Conditions Precedent and will notify each
other in writing immediately upon satisfaction. The Parties
shall co-operate in good faith with each other for the purpose of enabling
each other to fulfill their respective obligations pursuant to this
Agreement, and shall provide such information or assistance as may be
reasonably required for this purpose,
provided
that where procuring the
satisfaction of a Condition Precedent is solely the responsibility of one
Party then, if the assistance of the other Party is requested, the
reasonable expenses of such other Party shall be borne by the requesting
Party.
|
|
4.4
|
If the Conditions Precedent shall
not have been satisfied or waived, in each case by the Party entitled to
the benefit thereof, on or before the Longstop Date, then either Party
shall have the right to terminate this Agreement by written notice to the
other Party and, upon delivery of such written notice this Agreement shall
be terminated and the provisions of Clause 4.8 shall apply;
provided,
however
, that if,
prior to the Longstop Date, either Party has initiated any action or
proceeding challenging such termination and/or seeking to exercise any
equitable remedies to compel the other Party to perform its obligations
under this Agreement, no such termination shall be effective until the
later of (i) the Longstop Date and (ii) the date that is thirty (30) days
after the date on which any applicable court or arbitration panel shall
have finally determined that the other Party is entitled to terminate this
Agreement pursuant to its terms. In
addition, either Party may
terminate this Agreement at any time after the occurrence of any material
breach by the other Party of any of its covenants or agreements contained
in this Agreement if such breach is not
curable or, if curable, is
not cured upon the occurrence of the earlier of (A) the thirtieth (30
th
)
day after written notice thereof is given by the other Party and (B) the
day that is five (5) Business Days prior to the Longstop Date;
provided
, that
the Party seeking to terminate this Agreement is not itself in material
breach of this Agreement.
|
|
4.5
|
If the Conditions Precedent are
satisfied or waived in writing by the Party entitled to the benefit
thereof, then the Vendor may give notice as provided in Clause 3.2 and, if
the Vendor shall have failed to give such notice within two (2) Business
Days after the satisfaction or waiver of the Conditions Precedent, upon
written notice from the Purchasers, the Vendor shall deliver to the
Purchasers the notice as provided in Clause 3.2 within three (3) Business
Days thereafter.
|
|
4.6
|
On the Completion
Date:
|
|
|
4.6.1
|
the Vendor
shall deliver to the Purchasers, simultaneously with the payment of the
Purchase Price by the Purchasers pursuant to Clause
4.6.2(a):
|
|
|
(a)
|
A resolution of the General
Meeting of the Parent Co-Operatives evidencing the unanimous approval of
the members to the transfer at Completion of the Sale Member Interests and
the transfer of the corresponding member
account;
|
|
|
(b)
|
written acknowledgment from the
Boards of Directors of the Parent Co-Operatives of the transfer of the
Sale Member Interests with effect from Completion and an undertaking to
update the register of
members;
|
|
|
(c)
|
to the extent applicable, a duly
executed amendment of the articles of the Parent Co-Operatives and the
Companies;
|
|
|
(d)
|
any other necessary executed
documentation in respect of the transfer of all of the Sale Member
Interests;
|
|
|
(e)
|
a duly executed power of attorney
authorising the execution of a transfer of a membership of cooperative
document evidencing the transfer of the Sale Member Interests
substantially in accordance with Exhibit
D;
|
|
|
(f)
|
letters of resignation
,
with
effect
immediately upon Completion and the appointment by the Purchasers of
successor officers and directors, as applicable,
from
each of
the
officers of the Companies and each of the directors of the Parent
Co-Operatives,
in
each case stating that the individual concerned has no claim against any
Company
or any Parent
Co-Operative for compensation for the loss of
office;
|
|
|
(g)
|
any power of attorney or other
corporate authorisation under which any document required from the Vendor
under this Clause 4.6 is executed on behalf of the Vendor (for inspection
and return);
|
|
|
(h)
|
certified copies of the up-to-date
Articles of the Parent
Co-Operatives;
|
|
|
(i)
|
a duly executed copy of the Fuels
Trademark License Agreement and the Master Lubes
Agreement;
|
|
|
(j)
|
a schedule, based on the current
accounting records of the Companies, setting out a provisional list as at
the Completion Date of all Inter-Affiliate Payables and Inter-Affiliate
Receivables (whether or not due for payment);
and
|
|
|
(k)
|
the Adequate
Security.
|
|
|
4.6.2
|
the Purchasers
shall:
|
|
|
(a)
|
deliver the Purchase Price in
accordance with Clause
3.3(a);
|
|
|
(b)
|
deliver any countersignature
required to the documents for the transfer of the Sale Member Interests
and the corresponding member
accounts;
|
|
|
(c)
|
deliver a duly executed power of
attorney authorising the execution of a transfer of membership in a
cooperative
|
| document evidencing the transfer of the Sale Member Interests substantially in accordance with Exhibit D; |
|
|
(d)
|
deliver any power of attorney or
other corporate authorisation under which any document required from the
Purchasers under this Clause 4.6 is executed on behalf of the Purchasers
(for inspection and return);
|
|
|
(e)
|
promptly nominate new directors
and take all member and/or shareholder and director action necessary for
the name of the Companies or the Parent Co-Operatives (and after
Completion, the name of their respective Affiliates) to be changed to any
name that is available under applicable Legislation other than
“ExxonMobil,” “Exxon,” “Mobil,” “Esso” or any other name that is
confusingly similar to any such name
or that contains or is similar to
any mark of Exxon Mobil Corporation or its Affiliates (except for the use
of the trademarks licensed pursuant to the terms and conditions of the
Fuels Trademark License Agreement and/or the Master Lubes Agreement) and
procure that all existing mandates, powers of attorney and similar
authorizations for the operation of the bank accounts of the Companies be
revoked and that new mandates giving authority to those Persons nominated
by the Purchasers are effected immediately following Completion and that
any related other corporate formalities reasonably necessary are
addressed;
|
|
|
(f)
|
submit the application for
registration of any required amendment(s) to the articles of association
or equivalent constituent documents of any of the Companies and the Parent
Co-Operatives and/or nomination of any new directors of any of the
Companies and the Parent Co-Operatives upon the transfer of the Sale
Member Interests to Purchasers with the relevant Commercial Registry;
and
|
|
|
(g)
|
deliver to the Vendor a duly
executed copy of the Fuels Trademark License Agreement and the Master
Lubes Agreement.
|
|
|
4.6.3
|
(a)
|
The Vendor shall use its
commercially reasonable efforts to procure the release of each applicable
Company, prior to the Completion Date, from any and all liabilities or
obligations in respect of any guarantee, undertaking, indemnity in favour
of third parties for acts of the Vendor or its Affiliates (other than the
Companies) or similar Contract issued by any of the Companies to guarantee
the obligations of the Vendor or its
|
|
|
Affiliates
(other than the Companies) in favour of any third party
(other than commercial guarantees
to third parties by the Companies in respect of their own performance
obligations)
, and
hereby agrees to indemnify the Purchasers and their Affiliates (including
the Companies after the Completion Date) from and against any and all
Losses resulting from any failure to procure such releases. The
Vendor shall procure that the Companies are released (without payment by
the Companies to the Vendor or its Affiliates) from all Multi-National EM
Contracts and all contracts or other arrangements or agreements (whether
for the supply of goods, services or otherwise), between the Companies and
the Vendor or any of its Affiliates, other than those entered into on or
about Completion as provided in this Agreement, except in relation
to:
|
|
|
(i)
|
any contract, arrangement or
agreement pursuant to which, before Completion, goods had been ordered but
not delivered, or amounts payable under Clauses 3.4, 8.3 and 8.5 in which
case the contract, arrangement, agreement or obligation to pay an amount
under Clauses 3.4, 8.3 and 8.5 shall continue only in respect of the
obligations which the Companies and the Vendor (or the relevant Affiliate
of the Vendor) have in respect of such goods, or amount payable under
Clauses 3.4, 8.3 and 8.5 and after fulfilment of such obligations the
Companies shall be released from the relevant contract, arrangement,
agreement or obligation under Clauses 3.4, 8.3 and 8.5 as
applicable); and
|
|
|
(ii)
|
any Inter-Affiliate Payables and
Inter-Affiliate Receivables (which are to be dealt with in accordance with
Clauses 2.2, 2.3, 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6, as
applicable).
|
|
(b)
|
Purchasers acknowledge and agree
that, unless otherwise specified in this Agreement or any other agreement
contemplated hereby, all services provided to the Companies by Vendor or
any of its Affiliates, will be terminated and will stop at Completion and
shall be arranged for by Purchasers at their
discretion.
|
|
|
|
(c)
|
Purchasers acknowledge, covenant
and agree that
the
amended, restated and separated lease agreements to be executed by one of
the Companie
s, as
lessor, and one or more Affiliates of the Vendor, as lessees, in
connection with the
|
|
lease of
certain areas included in the property called Complexo Ilha do Governador,
as well as the cost sharing agreements related to such property to be
entered in
t
o by such parties, substantially
in the form of the drafts attached as Exhibit E, shall continue in full
force and effect following the Completion Date in accordance with their
respective terms.
|
|
4.7
|
If the
respective obligations of the Vendor or the Purchasers under Clauses 4.6.1
and 4.6.2 are not complied with on the Completion Date, the Party who is
not obligated to effect Completion under Clauses 4.6.1 or 4.6.2
may:
|
|
|
4.7.1
|
defer
Completion until a new date of its choice (in which case this Clause will
apply to Completion as so deferred), but not beyond the Longstop
Date;
|
|
|
4.7.2
|
waive all or any such requirements
and proceed to Completion as far as practicable (without limiting its
rights, whether under this Agreement or otherwise);
or
|
|
|
4.7.3
|
terminate this Agreement by notice
in writing to the other Party, but only in circumstances where the other
Party has materially failed to comply with the requirements of Clause
4.6.
|
|
4.8
|
If this Agreement is terminated in
accordance with Clause 4.4 or 4.7.3, all obligations of the Parties under
this Agreement shall end at the time of termination, except for Clauses
10, 11, 14, 15, 17, 19, 21, 24, 25, 26, 27, 28 and 29, which shall survive
any termination of this Agreement, but all rights and liabilities of the
Parties which have accrued before termination shall continue to
exist.
|
|
4.9
|
With effect from the Completion
Date, each Party (on behalf of itself and all of its Affiliates)
irrevocably releases the other Party and their respective Affiliates from
any and all liabilities or obligations relating to the Companies, the
Parent Co-Operatives or their respective businesses arising prior to the
Completion Date, including with respect to the Inter-Affiliate Payables or
the Inter-Affiliate Receivables (subject only to the determination and
settlement of the Completion Values in accordance with Clause 3.4,
settlement of the Inter-Affiliate Payables in accordance with Clause 3.5
and settlement of the Inter-Affiliate Receivables in accordance with
Clause 3.6) and the matters to be released under Clause 4.6.3, except with
respect to the rights and remedies of the Parties under this Agreement,
the Fuels Trademark Agreement and the Master Lubes Agreement
or any
other agreements entered into on or about the Completion Date as provided
in this Agreement
.
|
|
4.10
|
The Vendor shall procure that its
Affiliates shall release the Companies from any obligations in respect of
any Inter-Affiliate Payables not identified within thirty (30) days after
the Completion Date and
the Purchasers shall procure
|
|
that the
Companies shall release the Vendor and its Affiliates from any obligations
in respect of any Inter-Affiliate Receivables not identified within thirty
(30) days after the Completion
Date.
|
|
4.11
|
In addition to taking the actions
and executing and delivering the documentation set out in Clause 4.6, the
Parties agree to cooperate with each other to execute and deliver such
other documents as shall reasonably be necessary or desirable to carry out
the sale and purchase of the Sale Member Interests pursuant to this
Agreement and the intent of the Parties as reflected
herein.
|
|
4.12
|
4.12.1
Subject to Clause 4.12.2, on
termination of this Agreement in accordance with Clauses 4.4 or 4.7.3, the
Vendor shall deliver the Adequate Security to the Purchasers as soon as
reasonably practical.
|
|
4.12.2
If the Purchasers are in breach of
any provisions of this Agreement, the Vendor may, upon termination of this
Agreement, draw on the Adequate Security for and retain the secured
amount, up to the amount of the Losses resulting from such breach;
provided
,
however
, that nothing contained in this
Clause 4.12.2 shall limit any other remedies available to the Vendor under
this Agreement.
|
|
4.13
|
On the Completion Date, the Vendor
and the Purchasers shall sign the Completion Memorandum, in order to
record (i) the fulfilment of the Conditions Precedent, (ii) the deliveries
and other actions taken at Completion and as a consequence thereof, and
(iii) the sale and purchase of the Sale Member Interests in accordance
with this Agreement.
|
|
5.1
|
(a)
No warranty, assurance or other
commitment by the Vendor is made, nor shall any be implied, in relation to
the Sale Member Interests beyond those expressly provided in this
Agreement. The Warranties are given once at the date of this
Agreement and are repeated at the Completion Date;
provided
that
, to the extent
such Warranties speak as of any date other than the date of this
Agreement, such Warrants shall speak only as of such other date (as
updated in accordance with Clause 5.1(h)). Each of the
Warranties is to be construed as a separate and independent Warranty and
is not to be limited or restricted by reference to, or inference from, the
provisions of any other Warranty or anything else, whether in this
Agreement or otherwise. A matter shall be treated as being
within the knowledge of the Vendor if it was within the actual awareness
of those employees of the Vendor or its Affiliates listed on Schedule
5.1.
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(b)
|
The
Purchasers have entered into this Agreement on the basis of, and in
reliance on, the Warranties. If it is found, on or before the
Warranty Termination Date (or any applicable later date, to the extent any
Warranty survives later than the Warranty Termination Date or a claim has
been made by the Purchasers prior to the Warranty Termination Date or such
applicable later date), that any of the Warranties was untrue, misleading,
incorrect or unfulfilled either at the date of this Agreement or at the
Completion Date, the Purchasers and their Affiliates (including, after
Completion, the Companies) may by notice in writing to the Vendor seek to
recover from the Vendor the amount of any and all damages, losses,
liabilities, obligations, interest or expenses (including, without
limitation, reasonable attorneys’ fees and expenses) (collectively, “
Losses
”)
suffered as a direct consequence of the breach, subject to the applicable
limitations set forth in this Clause 5.1;
provided
,
however
, that,
with respect to any breach of the Warranties contained in Clause 5.2.5
(Accounts), the Purchasers shall be entitled to recover all economic
Losses incurred as a result of such breach;
provided
further
,
however
, that
such Losses, to the extent based on economic multiples, if any, shall not
exceed an amount equal to five (5) times the effect on the Net Income of
the Companies attributable to such breach of the Warranties contained in
Clause 5.2.5 (Accounts), and shall be subject to the applicable
limitations set forth in this Clause 5.1. Losses recovered, if
any, shall be considered a purchase price adjustment and may not be
set-off against payments due under Clause
12.6(b).
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(c)
|
In any event, except as otherwise
expressly provided below:
|
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|
(i)
|
the maximum aggregate liability of
the Vendor in respect of all claims under the Warranties shall not in any
circumstance exceed an amount equal to ten percent (10%) of the Purchase
Price;
|
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(ii)
|
subject to Clause 5.1(e) and the
other limitations set forth in this Clause 5.1, (x) no single Warranty
claim (or series of related Warranty claims) shall be made in respect of
claims (or series of related Warranty claims) of less than Five Hundred
Thousand U.S. Dollars ($500,000) (and, for the avoidance of doubt, such
claims may be made irrespective of any “material”, “in any material
respect”, “Material Adverse Effect” or similar qualification in the
Warranties);
provided
,
however
, that the Purchasers shall be
entitled to recover the entire amount of any Warranty claim (or series of
related Warranty claims) that is for an amount greater than Five Hundred
Thousand U.S. Dollars ($500,000) and (y) with respect to the Warranty set
forth in Clause 5.2.5 as it relates to the Companies’ profit and loss
statement set forth in the Accounts, no Warranty claim shall be made in
respect of individual or aggregate claims of less than Five Million U.S.
Dollars ($5,000,000) (for the avoidance of doubt, (A) such claims may be
made irrespective of any “material”,
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|
“in any
material respect”, “Material Adverse Effect” or similar qualification in
the Warranties and (B) such amount shall be
determined without giving effect to any multipliers in
determining the amount of the Loss in respect of which the claim is made);
provided
however
, that the Purchasers shall be
entitled to recover the entire amount of any such individual or aggregate
Warranty claims that exceed Five Million U.S. Dollars
($5,000,000). For purposes of this Clause 5.1(c)(ii), two or
more Warranty claims shall be deemed to be “related” if they arise out of
or in connection with the same underlying act, omission or
event; and
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(iii) the Vendor shall have no
liability to the Purchasers for any such Warranty in respect of which a
claim has not been notified to the Vendor in reasonable detail in writing
before the Warranty Termination Date, it being acknowledged and agreed,
however, that the Vendor’s liability in respect of any such breach shall
survive the Warranty Termination Date so long as the Purchasers have so
notified the Vendor on or prior to the Warranty Termination
Date.
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5.2
|
The Vendor represents and warrants
to the Purchasers as
follows:
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5.3
|
Notwithstanding any other
provision of this Agreement:
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5.3.1
|
the Purchasers acknowledge that
the Property has been used for industrial purposes including processes
relating to the storage, distribution and marketing of petroleum and
petroleum based products and other chemicals, and that the soil and
sub-soil of the Property and land and water adjacent thereto and drains,
sewers, pipes, water courses and water table at under or in the vicinity
of the Property may have been contaminated by oil or other Hazardous
Substances. The Purchasers agree and acknowledge that the
Vendor gives no warranty or representation as to the state and condition
of the Property, or land or water adjacent thereto, or their suitability
for any future use
;
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5.3.2
|
the Purchasers
agree:
|
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(a)
|
that any obligation (whensoever
arising) to investigate or to carry out remedial work on the soil,
sub-soil, drains, sewers, pipes, water courses and water table
at
, under
or adjacent to the
Property
(including
in respect of ground water or any property in the vicinity to which any
contamination may have spread from the Property)
may give rise to an Environmental
Liability of the Companies or the Parent Co-Operatives and that the Vendor
or its Affiliates shall have no liability in respect of the same including
under this Agreement;
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(b)
|
not to submit, and to procure that
there are not submitted by any of the Affiliates of the Purchasers (now or
in the future) or by any other Person, to the Vendor or its Affiliates or
their directors or agents or employees any claims relating in any way to
any investigation or to the state and condition of any of the Property and
drains, sewers, pipes, water courses and water table at
,
under
or adjacent to
the Property
(including in respect of ground
water or any property in the vicinity to which any contamination may have
spread from the Property)
against the Vendor or any of the
Vendor’s Affiliates, or any of their officers, directors, employees,
agents or insurers;
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(c)
|
that no insurance cover is
provided to the Purchasers or the Companies under any of the ExxonMobil
Policies; and no claim will be made by or through the Purchasers or by any
of the Affiliates of the Purchasers under any of the ExxonMobil Policies
provided by or for the benefit of any of the Affiliates of the Vendor;
and
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(d)
|
that, to the extent permitted by
law, it will procure that the Companies shall not convey any Property to
be used for residential, hospital or other health care, playground, school
or
|
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other educational or agricultural uses unless the relevant Property shall have been remediated to (i) the standards required by law for such use or, (ii) in the absence of such standards, generally accepted risk based standards. |
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5.4
|
The
Purchasers undertake to indemnify and keep indemnified the Vendor (for
itself and as trustee for each of the Affiliates of the Vendor and their
officers, directors, employees, agents and insurers) from and against all
Environmental Liabilities (including but without limitation any legal
fees) arising directly or indirectly from, or in connection with, or as a
result of any of the following, in each case, except to the extent related
to the operation of any Excluded Business other than as provided in the
Lease Agreements or cost sharing agreements with respect to the Property
called Complexo Ilha do Governador:
|
|
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5.4.1
|
any
Environmental Matter relating in any way to any of the Property, or the
activities of the Companies, or any act or omission, neglect or default
whether before or after the date of this Agreement of the Companies, or
the Purchasers or any of the Affiliates of the Purchasers at the Property,
or any employee or agent thereof, or any person for whom such affiliate is
vicariously liable;
|
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5.4.2
|
any Environmental Law relating to
any of the Property, or the activities of the Companies, or any act,
omission, neglect or default whether before or after the date of this
Agreement of the Companies or any of the Affiliates of the Purchasers
relating to any Property, or any employee or agent thereof, or any person
to whom any such person is vicariously
liable;
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5.4.3
|
the carrying out, or failure to
carry out, or defective or negligent carrying out of any investigation or
remedial works in relation to Environmental Matters;
or
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5.4.4
|
any claim made by or through the
Purchasers, or the Companies, or any person subrogated to the Purchasers’
rights, including its insurer, against any of the ExxonMobil Policies
provided by or for the benefit of any of the Affiliates of the Vendor,
including any claim for reinsurance, retrospective premium payments or
prospective premium
increases.
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In the event
of any Claim subject to indemnification pursuant to this Clause 5.4, the
Vendor acknowledges that the Purchasers shall have the right to conduct
the defence against (or prosecution of) such claim. To this
end, the Vendor shall inform the Purchasers in writing of the existence,
nature and claimed amount of any such claim within five (5) Business Days
of the Vendor having been notified or becoming aware of such claim;
provided
,
|
|
however
, that the failure to so
inform the Purchasers shall not affect the indemnification obligations of
the Purchasers in respect of such claim except to the extent that the
Purchasers are actually prejudiced thereby. Within fifteen (15)
days after the receipt of the Vendor’s written notification, the
Purchasers shall confirm in writing their intention to conduct the defence
against such claim;
provided
,
however
that
the Purchasers shall only be entitled to assume the defence against such
if they shall first have affirmatively acknowledged in writing their
obligation to indemnify the Vendor pursuant to this Clause 5.4 from and
against any and all liabilities and obligations in respect of such claim
in the event that it is ultimately determined to be liable
therefor.
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5.5.1.
|
The Purchasers undertake to ensure
that the employment terms and conditions of all Employees of any of the
Companies
(except with respect to any equity
compensation arrangements) will be substantially preserved (including,
without limitation, payment of FGTS) in the aggregate for a period of at
least twelve (12) months from Completion. In case during this
period Purchasers need to implement a selection process with respect to
continued employment, Employees of any of the Companies will be given an
equal opportunity in respect of employees of the Purchasers and their
Affiliates and the Redundancy Terms will be applied to any Employee
concerned, whether employment relationships are terminated on a collective
or individual basis or on any other legal basis or
procedure. For the avoidance of doubt and notwithstanding
anything to the contrary contained in this Agreement, to the extent
permitted by applicable Legislation, the Purchasers shall not be obligated
to continue the employment of any individual employee or to continue or
maintain any particular employee benefit plan or
arrangement.
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|
5.5.2
|
Following consultation with the
Vendor, the Purchasers undertake to communicate their intentions with
respect to the employment of Employees of the Companies following the
Completion Date no later than ten (10) Business Days prior to the
Completion Date;
provided
that such communication would not
create any rights in favour of any Person not a Party to this
Agreement.
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5.5.3
|
Intentionally
Omitted
|
|
5.5.4
|
The Parties acknowledge and agree
that, prior to the Completion Date but subject to all necessary permits
and approvals, the Vendor shall complete the transfer to another Person
designated by the Vendor of certain assets and liabilities of the Pension
Plan for the Employees Out-Of-Scope in accordance with Schedule 4.1(i) and
from and after the date of this Agreement, the Parties shall perform their
respective obligations pursuant to Schedule
4.1(i).
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|
5.5.5
|
The Purchasers will ensure that
the Companies maintain their practice of providing all necessary support
to defend and hold harmless employees prosecuted or sued in their
individual capacity as a consequence of the good
|
|
|
faith performance of their jobs with a Company prior to the Completion Date. |
|
5.6
|
The Vendor
covenants and agrees that:
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|
|
5.6.1
|
it shall,
prior to and until the Completion Date, promptly inform the Purchasers in
writing of anything material that may adversely impact the situation of
the Companies until the Completion Date, including claims formally
received or any material litigation or arbitration relating to the
Companies of which the Vendor becomes aware, or of any event known to the
Vendor reasonably believed by it to be likely to generate any such
material claim at all times up to the Completion Date (f
or the purposes of this Clause
5.6.1, a claim shall be deemed a material claim if it may have an adverse
economic effect on the Companies exceeding Three Hundred Thousand U.S.
Dollars ($300,000)); and
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|
5.6.2
|
it shall procure that the
Companies manage the Pension Plan in accordance with the applicable
Legislation and the terms of the Pension Plan. For the
avoidance of doubt, the Vendor is not itself obliged to provide funds to
enable to the Companies to fully fund the Pension Plan, and the Purchase
Price will not be adjusted by the amount of any funding provided by the
Companies.
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5.7
|
The Purchasers warrant to the
Vendor that:
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|
5.7.1
|
each
Purchaser is a corporation duly authorized and validly existing under the
laws of the country of its incorporation as referred to in this Agreement,
with power and authority to enter into and perform its obligations under
this Agreement;
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|
5.7.2
|
this
Agreement forms, or will on execution form, valid and binding obligations
on Purchasers in accordance with its provisions, subject to the effect of
any bankruptcy, insolvency, reorganisation, moratorium or similar
legislation affecting creditors' rights
generally;
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|
5.7.3
|
all necessary
consents have been, or will be, obtained to enable Purchasers to perform
its obligations under this Agreement;
and
|
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|
5.7.4
|
the choice of
English Law to govern this Agreement is valid and binding upon the
Purchasers.
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5.8
|
The
Purchasers acknowledge that the Vendor has made available to the
Purchasers, for purposes of due diligence, the documents described in this
Clause 5.8. The Purchasers acknowledge that they have received all
information requested by them and their experts to evaluate the
information and the documentation made available by the
Vendor. The Parties agree that such due diligence investigation
by the Purchasers and their experts
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|
shall be
taken into account in determining whether there has been any breach or
inaccuracy of any of the Warranties, to the extent information relating to
such breach or inaccuracy was (i) provided to
and actually reviewed
prior
to the Completion Date by the Purchasers or their experts as shown by the
electronic Intralinks log (Exhibit F) of the Virtual Data Room (Exhibit
G), (ii) contained in the physical data room (the agreed contents of which
are described in Exhibit H), (iii) contained in the confirmatory due
diligence and written answers to follow-up due diligence and confirmatory
due diligence requests by the Purchasers (Exhibit I), (iv) contained in
the Confidential Information Memorandum or (v) set forth in the
written management presentations (Exhibit J) in each such case, regardless
of whether information relating to such breach or inaccuracy was disclosed
on any of the Schedules delivered in connection with any of the
Warranties. For the avoidance of doubt, for purposes of the
foregoing clause (i), the Purchasers shall be deemed to have actually
reviewed all documents or information contained in a publication
identified in Exhibit F if the Purchasers or their representatives opened
the publication in which such document or information was
contained.
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|
5.9
|
The
Purchasers undertake that prior to Completion, neither
Purchasers nor any of their Affiliates will enter into any agreement
relating to the resale of the Sale Member Interests or the sale by the
Companies of any of the Companies' assets;
provided
,
however, that the foregoing shall not in any manner prohibit or restrict
the Purchasers’ right to market and negotiate with respect to any sale of
the Companies’ aviation business so long as (i) no definitive Contract or
letter of intent to sell such business is entered into prior to the
Completion Date, (ii) the Purchaser’s actions in marketing and negotiating
any such sale does not unreasonably interfere with the operation of the
aviation business by the Companies and (iii) the Purchasers, to the extent
permitted by applicable Legislation, inform the Vendor of any such
activities on a timely basis.
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5.10
|
No later than fifteen (15)
Business Days after the execution of this Agreement, the Parties shall
carry on a joint filing before required antitrust agencies, which shall be
conducted by the legal
advisors appointed by the
Purchasers, and to that purpose the Vendor shall provide or procure that
the Companies shall provide the Purchasers, upon written request, with all
available information necessary for such filing. The Parties
agree to consult w
i
th one another in connection with
any filing or submission required under applicable antitrust Legislation
and any other Legislation applicable to the consummation of the
transactions contemplated by this Agreement. Each Party shall
(i) coordinate and co
o
perate with the other Party in
timely exchanging such information and documents as may be necessary for
such filings and submissions, including the respective proceedings, (ii)
not make any such filing or submission without providing to the other
Party a
c
opy thereof for its review,
comment and consent in advance of the proposed filing
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|
or submission
and (iii) timely provide such reasonable assistance as the other Party may
request in connection with all of the foregoing. All
information and documents nece
s
sary for purposes of preparing the
filings and submissions required by applicable Legislation shall be
exchanged by the Parties on a confidential basis and shall not be used for
any purpose other than the filings and submissions required by applicable
Leg
i
slation and related to this
Agreement. Any market-related information to which the other
Party should not be granted immediate access shall be exchanged on an
external counsel basis only.
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|
5.11
|
All risks,
costs and expenses in connection with the proceedings for approval of the
transactions contemplated herein by the required antitrust agencies, as
well as any and all obligations relating to and resulting from the
required antitrust agencies’ decisions, will be borne exclusively by the
Purchasers;
provided
,
however
, that
each Party shall pay the costs and expenses of its own legal advisors in
connection with such approvals. The Purchasers agree to comply at their
sole expense with all terms established by the required antitrust agencies
as a condition to granting such
approval.
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|
5.12
|
The
Purchasers hereby undertake to, no later than thirty (30) days after the
Completion Date, make a filing with any required Public Authority in order
to update the records of the Companies before said Public Authority, and
to timely perform any other acts required under existing
Legislation.
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|
5.13
|
The Vendor
shall procure that the Companies shall transfer, prior to the Completion
Date, the Excluded Business, the Excluded Contracts and the
Employees-out-of-Scope to the Vendor or any Affiliate of the
Vendor. The Purchasers accept that such transfers shall be
carried out by the Vendor and the applicable Company under terms and
conditions which the Vendor shall freely determine prior to the Completion
Date;
provided
,
however
, that,
except as otherwise specifically set forth in this Agreement, in no event
shall such transfers or any of the terms and conditions in respect thereof
result in any liability or obligation of any of the Companies, the
Purchasers or any of their respective Affiliates, other than immaterial
internal administrative or service costs, or out-of-pocket costs that
result in a reduction of the Purchase Price pursuant to Clause 12.2 of
this Agreement.
|
|
The Vendor
undertakes to indemnify and keep indemnified the Purchasers and the
Companies (after the Completion Date) from and against all liabilities
arising from, or in connection with, or as a result
of:
|
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|
(i)
|
the
formalisation and execution of the transfer of the Excluded Business and
the Employees-out-of-Scope to the Vendor or any Affiliate of the Vendor;
and
|
|
|
(ii)
|
any Claim
against, or liability or obligation of, the Companies to the
|
|
extent
related to the Excluded Business and the Employees-Out-Of-Scope, whether
such Claim, liability or obligation relates to facts or circumstances
occurring prior to, on or after the Completion Date, except to the extent
the Purchasers or the Companies are otherwise indemnified pursuant to the
terms of the Lease Agreements or cost sharing agreements with respect to
the Property called Complexo Ilha do Governador
.
|
|
|
In the
absence of any confirmation within the aforesaid fifteen (15) day period,
it shall be understood that the Vendor has chosen not to conduct the
defence against the Excluded Business Claim, in which case the Purchasers
and/or the Companies shall be entitled to conduct such defence in their
sole discretion. In the event that the Vendor expressly decides
to conduct the defence against the Excluded Business Claim, then within
five (5) days after
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|
the end of
the latter 15-days' term (and in all events no later than ten (10) days
prior to the date on which a defence must be filed) the Purchasers and/or
the Companies shall deliver to the Vendor all information and
documentation that may be reasonably required for the preparation of the
defence and shall allow the Vendor to establish direct contact with the
third party claimant;
provided
,
however
,
that the Purchasers shall have the right to participate in the
defence of such Excluded Business Claim and to employ counsel, at their
own expense, separate from the counsel employed by the Vendor, it being
understood that the Vendor shall control such defence. In
addition, the Purchasers shall procure that the Companies will grant the
appropriate powers of attorney to the representative(s) designated by the
Vendor for the purpose of this defence, so that such representative(s) may
appear on behalf of the Companies before any courts, tribunals and public
entities and against any third parties involved in the Excluded Business
Claim, and conduct the defence against, or settle, the relevant Excluded
Business Claim as the vendor deems fit;
provided
,
however
, that
the Vendor shall not be entitled to enter into any settlement of an
Excluded Business Claim unless such settlement includes a full and
unconditional release of the Companies, the Purchasers and their
respective Affiliates and obligates the Vendor and its Affiliates to pay
the full amount of the liability, if any, in respect of such Excluded
Business Claim. Each of the Vendor and the Purchasers
undertakes to offer any assistance and mutual cooperation which may be
reasonably required for the purpose of the diligent and appropriate
defence of any Excluded Business Claim. The Vendor shall keep the
Purchasers periodically informed of the status of the defence or any
settlement reached and shall also inform the Purchasers in writing of the
final result of the
same.
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In the event
the Purchasers or the Companies receive payments of any
|
|
amounts as a
result of any Excluded Business Claim after the Completion Date, the
Purchasers shall, or shall procure that the Companies, pay such amount to
the Vendors or as the Vendors may direct within ten (10) days of the
receipt of such payment.
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|
5.14
|
(a) The
Vendor covenants and agrees that, throughout the Interim Period, the
Companies shall be managed in the ordinary course of business consistent
with past practices, within their ordinary operating expense limits;
provided that the Vendor shall not be in breach of the foregoing provision
in respect of (x) any steps the Companies may take during the Interim
Period to reduce in their books, for value, the levels of Inter-Affiliate
Payables and Inter-Affiliate Receivables, (y) the transfer, prior to the
Completion Date, of the Excluded Business[es], Excluded Contracts and
Employees-Out-Of-Scope to the Vendor or one of its Affiliates in
accordance with the provisions of this Agreement, and (z) any actions
taken under and in accordance with Clause 5.14
(c).
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(b) Except
with respect to the transfer of the Excluded Businesses, the Excluded
Contracts and the Employees-Out-Of-Scope, during the Interim Period, the
Vendor shall procure that the Companies use their commercially reasonable
endeavours to preserve intact their respective business organizations,
keep available the services of their officers and employees, and maintain
satisfactory relationships with licensors, suppliers, distributors,
clients and others having business relationships with them, including,
without limitation, with respect to the first six Material Contracts
identified on Schedule 5.2.8 hereto by using their commercially reasonable
efforts to (i) cause such Material Contracts to be renewed upon or prior
to the stated expiration thereof on terms and conditions that are
substantially the same as the existing terms and conditions thereof
(including with respect to the length of the terms of such Contracts), and
(ii) procure that such renewal contracts will not be subject to
termination or material modification by virtue of the transactions
contemplated by this Agreement. The Vendor and the
Purchasers agree, at the monthly meetings between the Parties during the
Interim Period, to jointly develop a plan with respect
to continuing the commercial relationships with the
counterparties to such Material Contracts, which may include, at the
Purchasers’ request (but subject to the Vendor’s
consent, not to be unreasonably withheld), meeting with
such counterparties (either
alone or, at the Vendor’s
election, jointly, if such counterparty
agrees) to discuss the terms of the renewals of
such Material Contracts to the extent such renewals
relate (or are reasonably expected to relate) to the Companies after the
Completion Date.
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(c) Without
limiting the generality of the foregoing and in furtherance thereof,
during the Interim Period, to the extent permitted by applicable
Legislation, except with the prior written consent of the Purchasers
(which shall not be
|
|
unreasonably
withheld or delayed, and in any event which shall be deemed to have been
given if the Purchasers have not responded to the Vendor’s written request
for consent and approval within five (5) Business Days after receipt by
Purchasers), Vendor shall procure that the Companies
not:
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(i) incur any
monetary obligation or monetary liability in excess of Seventy Five
Thousand U. S. Dollars ($75,000) individually, except (A) borrowings made,
taxes payable and trade payables in connection with purchase of goods and
services, (B) in connection with capital expenditures permitted by Clause
5.14(c)(iii), (C) in connection with the payment of payroll expenditures
of, payments with respect to pension plan contribution obligations made
by, or payment of promissory notes to the pension plan as they come due
by, the Companies, (D) in connection with any payment or judicial deposits
made in respect of pending litigation or other claims (other than any
Excluded COFINS Matter except in accordance with the terms of Clause
13.4), (E) costs and expenses in connection with the Excluded Businesses,
to the extent any such costs and expenses have been or will be included in
Inter-Affiliate Receivables or charged as part of ongoing allocations to
the Companies, (F) the sum of approximately One Million U.S. Dollars
($1,000,000) to the provide the Companies funds for the Companies’ M
arketing Financial Assistance
Program to grow
both
the Distributor and the Service Fill Strategic Global Account programs in
connection with the Companies
’
lubricants business,
(G)
incur any indebtedness in connection with any financing provided by or
arranged by Purchasers in order to pay the Inter-Affiliate Notes Payable
in accordance with Clause 2.2, or (H) any other category of expenses
agreed in writing by the Purchasers, in each case in the ordinary course
of business and consistent with past
practice;
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(ii) except
with respect to the Excluded Businesses, establish any entity, acquire or
sell any participation (including silent partnerships) in other entities
or incurring the obligation to acquire or sell such
participation;
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(iii)
excluding the dealer reassurance program as described in Schedule
5.14(c)(iii) (the "
Dealer
Reassurance Program
") or requirements under joint venture
agreements, undertake any capital expenditures for fixed assets not
required by applicable Legislation, except for ordinary course capital
expenditures not exceeding Ten Million U.S. Dollars ($10,000,000) in the
aggregate;
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(iv) issue,
grant or sell any shares, options, rights, warrants or similar instruments
with respect to any of the share capital of, or member interests (or other
applicable equity interests) in, any of the Companies, or enter into any
hedging or derivatives;
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(v) amend any
collective bargaining agreement to which any of the Companies is a party
or otherwise bound, except for any required annual
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renewal
thereof after consultation with Purchasers with respect to any
modifications to any of the terms of such collective bargaining
agreements;
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(vi)
make any change in the rate of wages, salaries, compensation, bonus,
incentives, benefits or other remuneration payable, or paying or agreeing
to pay, any bonus, extra compensation, pension or severance pay, to any
director, officer or employee of any of the Companies, except to the
extent required by applicable Legislation or by the terms of any existing
employee compensation or benefit plan of the
Companies;
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(vii)
hire, fire or revoke the employment of any Employee (for the
avoidance of doubt, not including any Employees-out-of-Scope) whose annual
gross compensation exceeds One Hundred Fifty Thousand U. S.
Dollars ($150,000), except in the ordinary course of business or except if
such firing or revocation is for
cause;
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(viii)
enter into any new Contract with a third party for services to be provided
to the Companies that will have any material impact after the Completion
Date;
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(ix) enter
into any guaranty of obligations of any Affiliate of the Vendor (other
than commercial guaranties by the Companies of their own performance
obligations to third parties or their busine sses) or releasing
(except after the payment in full of such obligations) any Affiliate of
the Vendor from any obligations payable to the
Companies;
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(x)
enter into, terminate or materially amend or modify any Material Contract
(or any Contract that would constitute a Material Contract if in effect on
the date of this Agreement);
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(xi)
acquire any Person or business, or divest any portion of the
business of any of the Companies (other than as contemplated by this
Agreement with respect to the Excluded Businesses) or enter into any
binding agreement, letter of intent or similar arrangement with respect to
the foregoing;
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(xii)
except for the lease agreements and cost sharing agreements referred
to in Clause 4.6.3(c) and except for the transfer of the Excluded
Businesses, Excluded Contracts and Employees-Out-Of-Scope, sell, transfer,
lease or otherwise dispose of or acquire any assets, except in the
ordinary course of business;
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(xiii)
change, to the detriment of any of the Companies, the terms of any
Contract that gives rise to Inter-Affiliate Payables or Inter-Affiliate
Receivables from those that have been disclosed to the Purchasers prior to
the date of this Agreement;
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5.15
|
During the
period from the date of this Agreement to the earlier of (i) the
Completion Date and (ii) the date this Agreement is terminated in
accordance with its terms, the Vendor shall, and shall procure that the
Companies and their respective Affiliates, officers, directors, employees,
agents, representatives, consultants, financial advisors, attorneys,
accountants and other agents of the Companies and the Vendor, refrain from
taking any action to, directly or indirectly, encourage, initiate, solicit
or engage in discussions or negotiations with, or provide any information
to, any Person, other than the Purchasers (and their Affiliates and
representatives), concerning any purchase of any equity securities of any
of the Companies or any merger, asset sale, recapitalization or similar
transaction involving any of the Companies, other than the transfer of the
excluded Business, the Excluded Contracts and the
Employees-Out-Of-Scope. The Vendor shall not, and shall procure
that the Companies and their respective Affiliates not, vote their equity
securities in any Company in favor of any purchase of any share capital of
any of the Companies, or any merger, asset sale, recapitalization or
similar transaction involving any of the Companies. The Vendor
shall notify the Purchasers as soon as practicable if any Person makes any
proposal, offer, inquiry to, or contact with, the Vendor or any Company,
as the case may be, with respect to the foregoing and shall describe in
reasonable detail the identity of any such Person and, the substance and
material terms of any such contact and the material terms of any such
proposal. From and after the execution of this Agreement, the
Vendor shall promptly enforce its rights (or procure that its applicable
Affiliates to enforce their rights) under any confidentiality agreements
specifically entered into with any Persons (other than the Purchasers or
their Affiliates) with respect to the potential purchase by such Person of
the shares (or other applicable equity interests) any of the Companies,
including, to the extent permitted under such confidentiality agreements,
by requesting that any such Persons return (or destroy, and certify such
destruction) any confidential information regarding the Companies that was
provided to such Persons.
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5.16
|
Prior to the
Completion Date and to the extent permitted by applicable Legislation, the
Vendor shall provide to the Purchasers (a) monthly management financial
reports and such other information with respect to the business and
properties of the Companies as the Purchasers shall from time to time
reasonably request (including any changes in the number of dealers
associated with the Companies, and a list of all those dealers who have
Contracts that have expired or are to expire shortly);
provided
that
(i) such request by the Purchasers shall not unduly interfere with the
business and operations of the Companies, (ii) the information requested
is in the form normally maintained by the Companies and (iii) such
requests are coordinated through the applicable representatives of the
Vendor or the Companies to be designated in connection with the Interim
Period transition to be implemented between the Parties; and (b) on a
monthly basis, such written information regarding the Gross Margins of the
Companies, including
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supporting
documentation and calculations in such detail as the Purchasers may
reasonably request, in order to determine whether the condition set forth
in Clause 4.1(k) would be satisfied, in each case assuming that Completion
were to occur in the immediately preceding
month.
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5.17
|
(a) In
consideration of the purchase of the Sale Member Interests by the
Purchasers, the Vendor agrees as
follows:
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(i) From the
date of this Agreement until the date that is five (5) years after the
Completion Date,
the
Vendor shall not, and shall procure that its Affiliates shall not, grant
or otherwise provide to any Person (other than the Purchasers or the
Companies) any license, authorization or similar rights specified in the
Fuels Trademark License Agreement to market motor fuels at retail under
the Trademarks listed in the Fuels Trademark License Agreement within the
Country specified in the Fuels Trademark License Agreement,
provided
that
the
obligation of the Vendor under this Clause 5.17(a)(i) shall
cease if the Fuels Trademark License Agreement is terminated by
the Vendor or its Affiliates because of a breach by the relevant Company
or by the Purchasers or their Affiliates at any
time;
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(ii) From the
date of this Agreement until the date that is three (3) years after the
Completion Date (the
“Restricted
Period”
),
the
Vendor shall not, and shall procure that its Affiliates shall not,
directly or indirectly own, manage, operate, control, be employed by or
participate in the ownership, management, operation or control of, any
fuels marketing business in the applicable Country where the Companies are
as of the date of this Agreement operating a fuels marketing business,
whether as an agent, shareholder, partner, joint venturer, investor or
otherwise (a
“Competing
Business”
);
provided
,
howeve
r, that
it shall not constitute a breach of this Clause 5.17(a)(ii): (x) for the
Vendor or its Affiliates to acquire ownership of securities of one percent
(1%) or less of any class of securities of a public company; and (y), for
the Vendor or its Affiliates to acquire (whether by merger, stock
purchase, purchase of assets or otherwise), any Person or business, or any
interest in any Person or business, that is engaged at the time of such
acquisition in any Competing Business;
provided
that,
in the case of (y) if more than five percent (5%) of such Person’s or
business’ gross revenue in the applicable Country is attributable to such
Competing Business, the Vendor or its Affiliate, as applicable, shall use
their commercially reasonable efforts to dispose of such Competing
Business within the time period set forth below and;
provided
,
further
that,
prior to offering such acquired Competing Business to any Person (other
than the Purchasers) the Vendor or its Affiliate, as applicable, shall, by
written notice to the Purchasers within thirty (30) days after the
consummation of such acquisition (a
“ROFO Notice”
), offer to
sell such Competing Business to the Purchasers at a price determined by
the Vendor or their applicable Affiliate (the
“ROFO
Price”
). Upon written notice to the Vendor or its
applicable Affiliates delivered within
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thirty (30)
days after the Purchasers’ receipt of the ROFO Notice (a “
ROFO Exercise Notice”
),
the Purchasers shall have the right to acquire, and the Vendor or its
applicable Affiliates shall be obligated to sell to the Purchasers, such
Competing Business, for the ROFO Price and on other terms and conditions
that are substantially comparable to the terms and conditions of this
Agreement, and the Purchasers and the Vendor shall use their commercially
reasonable efforts to consummate such transaction as promptly as
practicable, subject to receipt of any required approvals of applicable
Public Authorities. If the Purchasers fail to deliver a ROFO
Exercise Notice within thirty (30) days after receipt of a ROFO Notice, or
otherwise decline to exercise their right to acquire the Competing
Business pursuant to this Clause 5.17(a)(ii), the Vendor or its applicable
Affiliates shall be entitled, and shall use its commercially reasonable
efforts, to sell such Competing Business to any Person for a price not
less than the ROFO Price, within ten (10) months after the expiration of
the thirty (30) day period in which the Purchasers were entitled to
deliver a ROFO Exercise Notice. The Vendor or its Affiliates
shall not sell or agree to sell such Competing Business to any Person for
a price that is less than the ROFO Price unless the Purchasers have again
been offered the right to acquire such Competing Business for such lower
price in accordance with the provisions of this Clause 5.17(a)(ii) and has
failed to purchase the competing business;
and
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5.18
|
The Parties
agree to comply with the terms and conditions of Schedule 5.18 with
respect to the aviation business.
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6.
|
INDEMNIFICATION
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|
6.1
|
General
Indemnity
. (a) Subject to the
provisions of Clause 13.1, and except
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with respect
to any matter that constitutes a breach of any of the Warranties or to the
extent the Vendor may otherwise be liable for any matter under this
Agreement, the Purchasers shall, from and after the Completion Date,
indemnify the Vendor, the Affiliates of the Vendors and the officers,
directors and employees of the Vendor and its Affiliates against any
Losses arising out of any of the Parent Co-Operatives’ memberships or the
Parent Co-Operatives’ or the Companies’ ownership or operation of their
business or of any of their assets arising prior to, on or after the
Completion Date
.
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(b) In
the event of any Claim by any third party that is subject to
indemnification pursuant to this Clause 6.1, the Vendor acknowledges that
the Purchasers shall have the right to conduct the defence against (or
prosecution of) such Claim. To this end, the Vendor shall
inform the Purchasers in writing of the existence, nature and claimed
amount of any such Claim within five (5) Business Days of the Vendor
having been notified or becoming aware of such Claim;
provided
,
however
, that
the failure to so inform the Purchasers shall not affect the
indemnification obligations of the Purchasers in respect of such Claim
except to the extent that the Purchasers are actually prejudiced
thereby. Within fifteen (15) days after the receipt of the
Vendor’s written notification, the Purchasers shall confirm in writing
their intention to conduct the defence against such Claim;
provided
,
however
that
the Purchasers shall only be entitled to assume such defence if they shall
first have affirmatively acknowledged in writing their obligation to
indemnify the Vendor pursuant to this Clause 6.1 from and against any and
all liabilities and obligations in respect of such
Claim.
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6.2
|
Withholding of income
tax
: (a) The Vendor shall indemnify and hold harmless the
Purchasers and their Affiliates (including, after the Completion Date, the
Companies) against any withholding of income Tax that is required to be
paid by the Purchasers or the Companies under the Legislation of the
applicable Country and any and all Tax Liabilities related thereto that
are ultimately determined to be owing and that are paid by the Purchasers
or an Affiliate to a Public Authority, up to (and including) the total
amount of Fifty Million U.S. Dollars ($50,000,000) (net of withholding
Taxes pursuant to Clause 13.2) (hereinafter the “
WHT Liability
”)
arising:
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(i)
from the payment of the Purchase Price under this Agreement;
and/or
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(ii)
from any reorganization, including a merger or liquidation, of an
entity that (at the time of the Completion Date) was a direct equity
holder in the Companies occurring prior to the third anniversary of the
Completion Date (although Vendor shall consider in good faith a request by
Purchaser to extend this date beyond the third
anniversary);
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7.1
.
|
The Vendor shall
procure that the relevant Company is granted, under the Fuels Trademark
License Agreement and the Master Lubes Agreement, the right to continue
using in the Country covered by those Licenses during a period ending five
(5) years and ten (10) years, respectively, after the Completion
Date
,
the Trademarks
used within the businesses of the relevant Company including, without
limitation,
all Trademarks fixed
on property which is owned, leased or otherwise occupied or used by the
relevant Company or its agents, resellers or subcontractors, provided that
for aviation operations the period of the Fuels Trademark License
Agreement shall be limited to transitional use of up to thirty (30) days
from the Completion Date.
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7.2
|
The Purchasers agree that all
Trademarks will remain the property of the Vendor and/or Affiliates of the
Vendor. The Purchasers acknowle
dges that the only rights the
relevant Company has to use the Trademarks are as set out in the Fuels
Trademark License Agreement and the Master Lubes Agreement. The
Purchasers, the relevant Company and other Affiliates of the Purchasers
are bound by the
l
imitations set out in the Fuels
Trademark License Agreement and the Master Lubes Agreement and nothing in
this Agreement shall be interpreted to expand upon those
rights. The Purchasers agree to take all necessary measures to
cause the relevant Company t
o
comply with the provisions of
this Clause 7, the Fuels Trademark License Agreement and the Master Lubes
Agreement, including all requirements for de-branding
at the
expiration or termination of the Fuels Trademark License Agreement or
Master Lubes Agreement
.
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|
7.3
|
In order to
comply with the requirements of the existing regulations, the Purchasers
shall, at their sole responsibility, cost and expense, request and obtain
all necessary authorisations from the Public Authorities to promote the
re-branding of all the relevant Company's customers´ sites and facilities
and for the supply of its products at the expiration or termination of the
Fuels Trademark License Agreement or Master Lubes
Agreement.
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8.1
|
The Parties
recognise, as between them, that the change in ownership of the membership
of the Parent Co-Operatives shall not release the Companies
from:
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|
8.1.1
|
any of their
obligations, if any, in relation to the employment of their employees,
including any employees of the Companies on secondment to another Person
on the Completion Date, on their current terms and
conditions; and
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8.1.2
|
honouring
their obligations under any existing pension plan, provident fund and/or
end of service bonus arrangements in relation to current or former
employees or retirees of the Companies (excluding any of the
Employees-Out-Of-Scope).
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8.2
|
In relation
to any employee of the Vendor or any of its Affiliates seconded to work
for the Companies (
"
Impats
"), the costs attributable to the
secondment of such employee to the Companies up to the date of their
repatriation to their original place of employment or elsewhere or the
Completion Date, whichever is the earlier (but excluding any costs of
repatriation of such individual to their original place of employment or
elsewhere), whether becoming due for payment by the Companies before or
after Completion, will be for the account of the Companies. All
costs of repatriation of such individuals from the Companies shall be for
the account of the Vendor, whether becoming due for payment before or
after Completion.
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8.3
|
The Vendor shall, with effect on
or before Completion and without payment by or other cost to the Companies
or the Purchasers (except as set out in Clause 8.2) terminate the
secondment of any Impats, except, at the Vendor’s option, any Impats who
are also Employees-Out-Of-Scope (in which case such employee shall be
transferred to the Vendor or its Affiliate in accordance with this
Agreement) and shall in any event procure that neither the Companies nor
the Purchasers shall have any other liability in respect of such
employee.
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8.4
|
In relation to any employee of the
Companies seconded to work for the Vendor or any of its Affiliates
("
Expats
"), the costs attributable to the
secondment of such employee to the Vendor or any of its Affiliates up to
the date of their repatriation to the Companies or the Completion Date,
whichever is the earlier (but excluding any costs of repatriation of such
individual to the Companies), whether becoming due for payment by the
Vendor or any of its Affiliates before or after Completion, will be for
the account of the Vendor. The Vendor shall, with effect prior
to Completion, terminate the secondment of any Expats, except, at the
Vendor’s option, any Expats who are also Employees-Out-Of-Scope (in which
case such employee shall be transferred to the Vendor or its Affiliate in
accordance with this Agreement). All costs of repatriation of
such individuals to the Companies shall be for the account of the
Companies, whether becoming due for payment before or after
Completion.
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8.5
|
Costs stated in Clauses 8.2, 8.3
and 8.4 as for the account of one Party but which are actually incurred by
the other Party shall be recharged to the other Party within one hundred
twenty 120 days after the date of relocation of Impat or Expat concerned,
together with all supporting documentation, and shall be treated as
third-party invoices due for payment within thirty (30) days for the
purposes of this Agreement. Any costs so incurred but not
recharged within
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| the period referred to above shall be for the account of the Party that incurred such cost. |
|
8.6
|
If any Party or any of its
Affiliates is required pursuant to applicable Legislation to announce the
contemplated sale by the Vendor and purchase by the Purchasers of the Sale
Member Interests (as contemplated in this Agreement) to their employees or
employees’ representative bodies, then such Party shall agree with the
other Party, before such announcement is made, on the timing and form of
such announcement. For the avoidance of doubt, nothing in this
Agreement shall restrict the Companies before the Completion Date from
informing or consulting with their employees regarding the change in the
direct or indirect ownership of a Company;
provided
that, to the extent not
prohibited by applicable Legislation, the Vendor shall, reasonably in
advance of making any such communication with employees, provide the
Purchasers with notice of the content of such proposed communication and
shall incorporate therein any comments of the Purchasers made in good
faith with respect thereto.
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9.1
|
The Purchasers acknowledges that
Exxon Mobil Corporation maintains a worldwide programme of property and
liability insurance coverage for itself and its
Affiliates. This programme has been designed to achieve a
coordinated risk management package for the entire ExxonMobil
Group.
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9.2
|
It is understood and agreed by the
Purchasers that, from and after the Completion Date, no insurance coverage
shall be provided under the ExxonMobil Policies to Purchasers or the
Companies. Any pre-paid premiums for insurance coverage under
the ExxonMobil Policies from and after the Completion Date shall be
treated as Inter-Affiliate Receivables. Any unpaid premiums for
insurance coverage provided to the Companies until Completion date under
the ExxonMobil Policies shall be treated as Inter-Affiliate
Payables.
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9.3
|
It is understood and agreed by the
Purchasers that no claims regarding any matter whatsoever, whether or not
arising from events occurring prior to Completion, shall be made by the
Purchasers or the Companies against or with respect to any of the
ExxonMobil Policies regardless of their date of
issuance.
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9.4
|
The Purchasers shall indemnify and
defend the Vendor and its Affiliates against, and shall hold them harmless
from, any claim made after Completion against any of the ExxonMobil
Policies by the Purchasers or the Companies
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|
or any Person
claiming to be subrogated to the Purchasers’ or the Companies' rights,
including all costs and expenses (including legal fees) related
thereto.
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|
10.1
|
Except to the extent required to
be disclosed by any applicable Legislation, each Party shall treat this
Agreement as confidential and shall not disclose its existence or its
contents to any third party (except for Affiliates of either
Party and such Party's respective
professional advisers and auditors). The Parties agree
that this Agreement shall be subject to the terms and conditions of the
Confidentiality Agreement and the Parties agree to abide by the terms
thereof.
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|
10.2
|
Subject to Clause 8.6, no
announcement
or
statement about this Agreement or the subject matter of, or any matter
referred to in, this Agreement shall be made or issued before, on or after
Completion by or on behalf of either Party without the prior written
approval of the other Party (such approval not to be unreasonably withheld
or delayed), provided that:
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|
10.2.1
|
nothing shall
restrict the making by either Party (even in the absence of agreement by
the other Party) of any statement or disclosure which may be required by
applicable Legislation (including regulations of a relevant stock
exchange) and judicial decisions;
provided
that
the disclosing Party, to the extent practicable and permitted by
applicable Legislation, shall first have notified the other Party of such
requirement and provided the other Party with the opportunity, at the
other Party’s sole cost and expense, to seek appropriate protective
measures;
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10.2.2
|
that the
Party making such announcement shall take all steps as may be lawful and
reasonable in the circumstances to agree the contents of such announcement
with the other Party prior to its making such announcement;
and
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|
10.2.3
|
nothing shall
restrict the making by the Vendor or its Affiliates (even in the absence
of agreement by the Purchasers) the terms of the restrictions imposed on
the Vendor or its Affiliates under Clause 5.17, without identifying to
such third party the Person imposing such restrictions on the Vendor or
its Affiliates.
|
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|
10.2.4
|
Nothing
contained in this Clause shall be construed as a limitation on the ability
of the Purchasers to disclose any information concerning the Companies
from and after the Completion Date, except as may
|
| be otherwise set forth in the Fuels Trademark Licensing Agreement or the Master Lubes Agreement. |
|
10.3
|
The Vendor will withdraw from the
Companies by the Completion Date all originals and copies of the Vendor's
or its Affiliates' (other than a Company's) proprietary manuals,
information, programs, hardware and related
documentation listed in Schedule
10.3, as such Schedule may be modified by Vendor prior to Completion Date
to include additional proprietary
manuals, information, programs,
hardware and related
documentation. The
Vendor takes no exception to the Purchasers’ or the Companies’ retention
and use of written information or documentation not listed in
Schedule
10.3.
|
|
11.
|
COPYRIGHTS,
PATENTS, KNOWHOW AND ITY OF SYSTEM
INFORMATION
|
|
11.1
|
The Vendor
shall not, and shall procure that its Affiliates shall not, sue the
Purchasers or the Companies to enforce Copyrights, to the extent that the
Vendor and its Affiliates have such power to enforce the Copyrights, on
any work created by employees of any Company, or otherwise make any claims
or demands on the Purchasers in connection
therewith.
|
|
11.2
|
Nothing
contained in this Clause 11 shall give the Purchasers the right to
disclose, publish, or disseminate, except as set forth elsewhere in this
Agreement, the source of technical information provided by the Vendor
except as required by Public Authority or
Legislation.
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11.3
|
The Vendor
makes no representation as to the rights of the Purchasers or the
Companies under any patent rights of others and the transactions
contemplated under this Agreement shall in no way be construed as an
inducement to infringe such patent rights of others.
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11.4
|
Nothing in
this Agreement shall be construed as an obligation on the Vendor or its
Affiliates to obtain or maintain Copyrights, or as any kind of restriction
to the right owned by the Vendor and its Affiliates to freely dispose of
or use the Copyrights and Knowhow, except as set forth in the Master Lubes
Agreement.
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11.5
|
The Vendor
and its Affiliates make no warranties, express, implied or statutory, with
respect to the Copyrights and Knowhow not expressly set forth in this
Agreement or the Master Lubes
Agreement.
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12.1
|
For the avoidance of doubt no
adjustment to the Purchase Price shall be made by virtue of any
accumulation of cash or cash equivalents in the Companies during the
period from the Accounts Date to the Completion
Date.
|
|
12.2
|
The Purchase Price shall be
increased by (i) the amount of [*] (which for the avoidance of doubt
includes,
inter
alia
, any amount paid
for [*] less an amount of [*] (or otherwise that will be required to be
paid) by the Companies on this amount (ii) less any out-of-pocket expenses
incurred by the Companies up to [*] in connection with the sale or
transfer of the [*].
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|
12.2.1
|
No adjustment to the Purchase
Price shall be made to the extent of the amount included in such cash in
Clause 12.2(i) [*], if any, of the [*] purchased by the Companies
after 1st January 2008 and transferred with the
[*].
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12.2.2
|
The Purchase Price adjustment
under Clause 12.2 shall be reduced by [*] related to [*] transferred with
the [*] and increased by the amount of any [*] related to [*] so
transferred.
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|
12.3
|
If any distribution or payment
from the member’s accounts of either of the Parent Co-Operatives, or any
dividend, special interest payment, capital reduction, or distribution in
respect of the capital stock (or other applicable equity interest) of any
of the Companies (except to the extent the same is made into the member’s
accounts of the Parent Co-Operatives) is declared, authorized or paid
during the Current Accounts Period, then the Purchase Price shall be
reduced by the same amount of the distribution, payment, dividend, special
interest payment, capital reduction or distribution and if such dividend,
special interest payment capital reduction or distribution is not paid by
Completion, it will be treated as an Inter-Affiliate Payable and dealt
with in accordance with Clauses 2.3, 3.3 and 3.4 of this
Agreement.
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|
12.4
|
If the Vendor or any of its
Affiliates makes, during the Interim Period and with the prior written
consent of the Purchasers, any capital contribution which increases the
net worth of the Parent Co-Operative (other than the contribution of the
shares or quotas of the Companies to the Parent Co-Operatives, and other
than any capital contribution to fund any liability or obligation in
connection with any Excluded COFINS Matter) then the amount of the
Purchase Price shall be increased by the amount of such capital
contribution.
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|
12.5
|
The Purchase
Price shall be (i) adjusted upward by any existing judicial deposit that
was funded prior to the Accounts Date relating to an Excluded COFINS
Matter that is withdrawn by the Companies during the Interim Period as a
consequence of a Final Judicial Decision in favour of the Companies
involving such Excluded COFINS Matter; (ii) adjusted downward by any
judicial deposit relating to an Excluded COFINS Matter that is made during
the Interim Period; or (iii) adjusted downward by any amount exceeding the
existing judicial deposit in respect of any Excluded COFINS Matter that is
paid by the Companies during the Interim Period as a consequence of a
Final Judicial Decision against the Companies involving such Excluded
COFINS Matter
.
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|
12.6
|
(a)
As additional
consideration for the purchase and sale of the Sale Member Interests, for
each Applicable Earn-out Period, the Vendor shall be entitled to an
Earn-out Payment (as defined below), which shall be deemed to be
adjustments to the Purchase Price, and shall be payable, subject to the
terms and conditions set forth in this Clause 12.6, on February 28 of each
year (or, if such date is not a Business Day, on the next succeeding
Business Day), with the first installment being due on the first 28
th
February following the Completion Date. For purposes of this
Clause 12.6, “
Applicable
Earn-out Period
” shall mean (x) with respect to the first Earn-out
Payment, the period from the Completion Date until the last day of the
calendar year in which the Completion Date occurred, (y) with respect to
any subsequent Earn-out Payment (other than the final Earn-out Payment),
the period from and including January 1 of the most recently ended
calendar year to and including December 31 of such calendar year and (z)
with respect to the final Earn-out Payment, the period from and including
January 1 of the most recently ended calendar year to and including the
tenth (10th) anniversary of the Completion
Date.
|
|
|
(i)
|
an amount
equal to [*] of the total gross revenue earned by the Companies and their
Affiliates (or any successors or assignees thereof) during the Applicable
Earn-out Period as a result of sales of Products and Supply Products (as
defined in the Master Lubes Agreement);
plus
|
|
|
(ii)
|
an amount
equal to [*] multiplied by the number of barrels of [*] (excluding Supply
Products)(as such terms are defined in the Master Lubes Agreement) sold by
any of the Companies or their Affiliates (or any successors or assignees
thereof) during the Applicable Earn-out Period;
plus
|
|
|
(iii)
|
an amount
equal to [*] multiplied by the number of barrels of [*] (excluding Supply
Products) (as such terms are defined in the Master Lubes Agreement) sold
by any of the Companies or their Affiliates (or any successors or
assignees thereof) during the Applicable Earn-out Period;
plus
|
|
|
(iv)
|
a fixed
amount equal to [*] (or, in the case of the first and the last Applicable
Earn-out Periods, a pro rated portion of [*] based on the number of days
elapsed during such Applicable Earn-out
Periods).
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|
13.1
|
The
Purchasers undertake to indemnify the Vendor (for itself and as trustee
for each of the Affiliates of the Vendor and their officers, directors and
employees) from and against all Tax Liabilities related to the operations
of the Companies after the Completion, except to the extent that the
Vendor may otherwise be liable for such Tax Liabilities under this
Agreement or to the extent that any such Tax Liability arises as a result
of any facts or
|
| circumstances that constitute a breach of any of the Warranties of the Vendor. |
|
13.2
|
All sums payable by Vendor
or its Affiliates
under this Agreement are net of
any withholding Taxes. If the Vendor or its Affiliates are
required by any applicable Legislation to deduct Taxes from or in respect
of any sum payable under this Agreement to the Companies or the
Purchasers, the amount paid shall be increased to the extent necessary to
ensure that, after making all required deductions, the Companies or the
Purchasers receive an amount equal to the sum that would have been
received had no such deductions been required.
Should
the Vendor or its Affiliates be required by applicable Legislation to make
such payments, such amounts shall be treated as having been paid to the
Person in respect of which such deduction and withholding was made, and
the Vendor shall then timely pay the amount due to the respective tax
authority. The Vendor or its Affiliates shall deliver to Purchasers a
certified copy of the tax documents attesting to the collection of such
withholding Tax within a 30-day period following the payment date. Should
the Purchasers or the Companies be held liable for a payment due by the
Vendor pursuant to this Clause, the Vendor shall defend, hold harmless and
indemnify the Purchasers or the
Companies.
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|
13.3
|
Except for amounts to be paid
pursuant to Clause 13.4.3, all sums payable by the Purchasers or the
Companies under this Agreement shall be net of any withholding
Taxes. If the Purchasers or the Companies are required by any
applicable Legislation to deduct Taxes from or in respect of any sum
payable under this Agreement to the Vendor or its Affiliates, the amount
paid shall be increased to the extent necessary to ensure that, after
making all required deductions, the Vendor or its Affiliates receive an
amount equal to the sum that would have been received had no such
deductions been required.
Should the Purchasers or the
Companies be required by applicable Legislation to make such payments,
such payments shall be treated as having been paid to the Person in
respect of which such deduction and withholding was made, and the
Purchasers or the Companies shall then pay the amount due to the
respective tax authority. The Purchasers or the Companies shall deliver to
Vendor or its Affiliates a certified copy of the tax documents attesting
to the collection of such withholding Tax within a 30-day period following
the payment date. Should the Vendor or its Affiliates be held
liable for a payment due by the Purchasers or the Companies pursuant to
this Clause, the Purchasers shall defend, hold harmless and indemnify the
Vendor or its Affiliates.
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|
13.4
|
The Vendor
shall retain full economic and other responsibility for the Excluded
COFINS Matters. The Vendor shall indemnify and hold harmless
the Purchasers and their Affiliates (including, after the Completion Date,
the Companies) for any Excluded COFINS Matter and any Losses related
thereto, to the extent that such Losses are not paid to the Purchasers
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|
pursuant to
Clause 13.4.4. The Purchasers (including, after the Completion
Date, the Companies) shall indemnify and hold harmless the Vendor and its
Affiliates for any Losses resulting from the failure of the Purchasers to
pay amounts as required by Clause
13.4.3.
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|
13.4.1
|
The Vendor,
in coordination with the Purchasers and the Companies, will have the right
(at the Vendor’s sole expense) to conduct the defence of (or the
prosecution of) the Excluded COFINS Matters, including monitoring of all
litigation related to the Excluded COFINS Matters at the judicial or
administrative levels; provided, however, that neither the Vendor nor
outside counsel nominated by the Vendor shall agree to any settlement that
could have an adverse effect on the Purchasers, their Affiliates or the
Companies (other than liabilities for which the Vendor is reimbursing the
Purchasers pursuant to Clause 13.4.4 or for which the Purchase Price is
adjusted pursuant to Clause 12.5) without the prior written consent of the
Purchasers, which shall not be unreasonably withheld or
delayed.
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|
13.4.2
|
The
Purchasers shall ensure that the Companies shall provide full assistance
to Vendor, at the Vendor’s sole cost and expense, in its defense against
the Excluded COFINS Matters. To this end the Purchasers shall,
at the Vendor’s sole cost and
expense:
|
|
(a)
|
Inform the
Vendor in writing of all correspondence from any Public Authority of the
Country relating directly or indirectly to the Excluded COFINS Matter, and
forward it in a timely fashion to
Vendor;
|
|
(b)
|
Make
available all relevant documents and information related to any Excluded
COFINS Matter required by the Vendor to conduct the
defense;
|
|
(c)
|
If requested
by the Vendor, ensure that the Companies will sign and timely deliver to
any applicable Public Authority of the Country all correspondence drafted
by the Vendor or by counsel retained by the Vendor relating to the
Excluded COFINS Matter. Upon request by the Vendor, the Purchasers shall
provide to the Vendor copies of all correspondence filed by the Companies
with any applicable Public Authority of the Country in that respect;
and
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|
(d)
|
Ensure that
the Companies will provide powers of attorney to the persons nominated by
the Vendor to legally represent the Companies with respect to any Excluded
COFINS Matter.
|
|
13.4.3
|
If (i) there
is a Final Judicial Decision with respect to any specific Excluded COFINS
Matter and (ii) the Companies are entitled to withdraw some or all of the
judicial deposit associated with such specific Excluded COFINS Matter that
was made by the Companies (because pursuant to the Final Judicial Decision
it is determined that the judicial deposit exceeds the liability (if any)
from the specific Excluded COFINS Matter), the Purchasers shall pay the
Vendor the amount of such judicial deposit and accumulated interest (A)
actually withdrawn or (B) applied by the Purchasers or a Public Authority
as a deposit against a Tax other than such specific Excluded COFINS
Matter. The amount of the required payment shall be adjusted to take into
account all Tax costs and Tax savings of the Purchasers or the Companies
(such as additional income, deductions or credits) resulting from the
Final Judicial Decision, withdrawal, and payment of amounts pursuant to
this Clause 13.4.3 to the Vendor. Such payment shall be made
within a reasonable time (to be agreed between the Parties) after such
withdrawal and in accordance with Clause 13.4.5. If the
Purchasers are contesting (in good faith) the Public Authority’s retention
of the deposit (to apply such amount as a deposit against Taxes other than
such specific Excluded COFINS Matter), it shall be deemed reasonable for
the Purchasers not to make the payments of such amounts to the Vendor
until the earlier of (i) the date such contest is resolved and (ii) sixty
(60) days after the judicial deposits were first applied by the Public
Authority to offset Taxes other than such specific Excluded COFINS
Matter. Payments due to the Vendor under this Clause shall not
be set off against payments due to the
Purchasers.
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|
13.4.4
|
(a) Following
a Final Judicial Decision with respect to any specific Excluded COFINS
Matter, or at the time the Vendor decides not to (or is no longer entitled
by Legislation to) litigate (or otherwise pursue administrative or
judicial remedies to contest) any Excluded COFINS Matter, the Vendor shall
inform the Purchasers in a timely fashion the amounts that are or will
become due by the Companies to the applicable Public Authority. Should the
amount due regarding the Excluded COFINS Matter exceed the amount of any
related judicial deposit made by the Companies, the Vendor and its
Affiliates shall pay the excess to the Purchasers or their Affiliates or
the Companies, as indicated by the Purchasers, at no cost of any nature to
the Purchasers and their Affiliates and the Companies (including as
provided in Clause 13.2). The amount of the required payment
shall be adjusted to take into account all Tax costs and Tax savings to
the Purchasers or the Companies (such as additional income, deductions or
credits) resulting from the Final Judicial Decision and payment of amounts
pursuant to this Clause 13.4.4(a) and shall
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|
be paid in a
timely manner (to allow the Companies to pay those amounts to the
applicable Public Authority by the due date). Payments due to
the Purchasers under this Clause 13.4.4(a) shall not be set off against
payments due to the Vendor.
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|
13.4.4
|
(b)
Tax
Certificates.
(1) If the Purchasers or the Companies are
required by applicable Public Authorities of the Country, or due to
business reasons, to obtain Tax Certificates, then the Purchasers or the
Companies shall, in a timely manner (i) obtain a report from the Public
Authorities that lists their outstanding Tax liabilities (according to the
records of the Public Authority) (the “
Report
”), (ii) determine
whether any items on the Report are related to the Excluded COFINS Matters
(“
Excluded COFINS
Items
”) and (ii) notify the Vendor of any Excluded COFINS Items on
the Report (if the Purchasers or the Companies did not previously notify
the Vendor of such items). In addition, the Vendor and its
Affiliates, together with the Purchasers and the Companies, shall take all
appropriate actions to remove the Excluded COFINS Item(s) from the Report,
taking into account the procedures agreed upon outlined in Schedule
13.4.4(b), with the understanding that the Vendor shall have the primary
responsibility to take all actions to remove the Excluded COFINS Item(s)
other than those actions (such as obtaining the Report, applying for the
Certificate or making payments) that cannot legally be performed by the
Vendor or its Affiliates.
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|
13.4.4
|
(c) After the
Completion Date, until there is a Final Judicial Decision involving any
specific Excluded COFINS Matter, the Vendor or its Affiliates shall
guarantee that the Purchasers or their Affiliates shall have access to
liquidity to meet, in a timely fashion, the necessity to make judicial
deposits on any specific Excluded COFINS Matter. The Vendor shall elect
the most efficient manner to assure that this liquidity remains in place
until the Final Judicial Decision involving any Excluded COFINS Matter,
including but not limited to letter of credits or loans, without any cost
of any nature (including Taxes) to the Purchasers or the Companies during
any stage of the liquidity (including making the liquidity available and
terminating the liquidity arrangement). The sole recourse that
the Vendor and its Affiliates have to recover amounts loaned (or otherwise
made available) under this Clause 13.4.4(c) is to collect amounts owed by
the Purchasers pursuant to Clause 13.4.3. Thus, subject to
Clause 13.4.5, if the Purchasers make all payments required by Clause
13.4.3, or if no payment is required to be made by Purchasers pursuant to
Clause 13.4.3, Purchasers shall have no further liability to repay any
amounts loaned (or otherwise made available) pursuant to this Clause
13.4.4(c) (or Clause 13.4.4(b)(3)). In any event, the Vendor
and its Affiliates shall indemnify and hold harmless the Purchasers and
the Companies for any Taxes resulting from the release of this obligation
(to the extent such Taxes cannot be recovered by the Purchasers or the
Companies by means of a Tax
deduction).
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|
13.4.5
|
Purchasers
and Vendor will use their respective commercially reasonable efforts to
find and agree on an efficient structure for payments to be made pursuant
to this Clause 13. The Purchasers shall not withhold or delay
their
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|
acceptance of
any structure which is other than a direct payment from the Vendor to the
Purchasers (for payments to Purchasers) or from the Purchasers to the
Vendor (for payments to the Vendor) so long as, more likely than not, such
other structure will not increase any costs or liabilities of the
Purchasers or the Companies taking into account the Vendor’s obligation to
indemnify to the Purchasers or the Companies against any Losses incurred
as a result of the acceptance of such structure. If, pending
discussions on the structure, the Purchasers or the Companies are unable
to make timely payments, the Vendor or its Affiliates, pursuant to Clause
13.4.4, shall provide the Purchasers or the Companies with access to
liquidity to meet the payment obligations in a timely
fashion. Nothing in this Clause 13.4.5 shall
relieve the Vendor of its responsibility to make the Purchasers whole for
all costs (including Taxes) incurred on payments to or from the Vendor
pursuant to Clauses 13.4.3 and
13.4.4.
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|
13.4.6
|
If (i) pursuant to a Final
Judicial Decision, the Companies or their Affiliates are liable
for and the Public
Authority has the right to collect (either in the form of
a payment or application of a
refund or credit) from the Companies or their Affiliates
an amount regarding an Excluded
COFINS Matter; and (ii) there is another Final Judicial Decision that
determined the Companies or their Affiliates cannot use certain
Tax
credits (other
than for Excluded COFINS Matters) because such Tax credits were previously
used to offset Excluded COFINS Matters; then the Vendor and its Affiliates
shall compensate the Purchasers or their Affiliates for any Taxes due as a
result of the
C
ompanies
’
or their Affiliate's inability to
use such Tax credits (other than for Excluded COFINS
Matters). Clauses 13.4.4(a) and 13.4.5 shall apply to such
payments to the Purchasers or their Affiliates in the same manner as if
such Taxes were Excluded C
O
FINS
Matters.
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|
13.5.
|
Subject to
the provisions contained in Clauses 6.1.2, 13.2 and 13.3, each of the
Parties shall be exclusively liable for its own Taxes that may result
solely from the sale, assignment and transfer of the Sale Member Interests
and Inter-Affiliate Payables and Inter-Affiliate
Receivables.
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|
13.6
|
The Vendor
and certain of its Affiliates may require access to documents of the
Companies after the Completion Date for the purpose of responding to
official demands made by authorities of the United States of
America. For the purpose of ensuring that the Vendor and its
Affiliates can satisfy those requirements, the Purchasers undertakes, upon
written request of the Vendor, at the Vendor’s sole cost and expense other
than immaterial internal administrative or service costs, to make
available to the Vendor and its Affiliates those data and or documents
held by the Companies at the Completion Date. Nothing in this
provision shall, however, prevent the Companies from operating in
accordance with any Legislation affecting or any policy or practice of the
Companies with regards to the retention of
documents.
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15.1
|
This Agreement (together with all
documents to be entered into pursuant to it which are not expressed to be
governed by another law) shall be governed by, and construed and take
effect in accordance with, the law of England and Wales. This
Agreement shall be executed by all Parties in London,
England.
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|
15.2
|
The Parties to this Agreement do
not intend that any of its terms will be enforceable by virtue of the
Contracts (Rights of Third Parties) Act 1999 by any Person not a Party to
it.
This
Agreement may be amended by agreement of the Vendor and Purchasers
pursuant to Clause 20 without the need to consult or obtain approval of
any other party.
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|
15.3
|
Any dispute arising between the
Parties in regard to:
|
|
|
(i)
|
the interpretation
of;
|
|
|
(ii)
|
the Parties’ respective rights and
obligations under;
|
|
|
(iii)
|
a breach
of;
|
|
|
(iv)
|
any matter arising out of;
or
|
|
|
(v)
|
the termination of
this
Agreement,
|
|
15.4
|
The Parties agree
that:
|
|
|
(a)
|
such dispute shall be resolved by
three arbitrators appointed in accordance with the
Rules;
|
|
|
(b)
|
the seat of the arbitration shall
be London;
|
|
|
(c)
|
the language of the arbitration
shall be English;
|
|
|
(d)
|
any award of the tribunal shall be
final and binding from the day it is
made;
|
|
|
(e)
|
judgment on the award of the
tribunal may be entered in any court having
jurisdiction.
|
|
15.5
|
Notwithstanding anything to the
contrary contained in this Clause 15, the Parties acknowledge and agree
that each Party shall be entitled to seek provisional measures from any
court of competent jurisdiction, and any such request shall not be deemed
incompatible with the Parties’ agreement to arbitrate or a waiver of the
right to arbitrate.
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|
16.1
|
For purposes
of this Clause 16,
"Official"
means and
includes:
|
|
|
(a)
|
any officer
or employee of any government or any department, agency or instrumentality
(i.e., any legal entity controlled by the government) thereof, or any
person acting in an official capacity on behalf of any such government,
department, agency or
instrumentality;
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|
(b)
|
any political
party;
|
|
|
(c)
|
any official
of a political party;
|
|
|
(d)
|
any candidate
for political office; or
|
|
|
(e)
|
any officer
or employee of a public international organization (e.g., United Nations,
IMF, World Bank).
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|
16.2
|
Each of the
Parties represents and warrants to the other Parties that it has not
offered, paid, promised to pay, authorized the payment of, or transferred,
money or anything of value to an Official to secure any improper advantage
or benefit in relation to the matters contemplated by this Agreement,
either directly or indirectly through a third
party.
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16.3
|
In
recognition of the principles of the OECD Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions which
entered into force on February 15,1999, and the United States Foreign
Corrupt Practices Act, each of the Parties further represents and agrees
that it will not, directly or indirectly, in connection with this
Agreement or its performance thereunder, offer, pay, promise to pay, or
authorize the giving of
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|
money or
anything of value to an Official, or to any other person while knowing or
being aware of a high probability that all or a portion of such money or
thing of value will be offered, given or promised, directly or indirectly
to an Official, for the purpose of influencing the act, decision or
omission of such Official with regard to any matters related to this
Agreement.
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16.4
|
Each Party
represents to the other Parties that, except as it has already disclosed
to the other Parties or as set forth on Schedule 16.4 hereto, to the
knowledge of such Party, no Official or close relative of an Official has
any direct or indirect material ownership or other material legal or
beneficial interest in such Party or any of its Affiliates, or in the
contractual relationship established by this Agreement, and that no such
Official serves as an officer, director, or employee of such
Party. Each Party agrees to notify the other Parties promptly
and in writing of any changes between now and the Completion Date in its
officers, directors, or employees or in the direct or indirect ownership
in it or its Affiliates that would be inconsistent with the above
representations.
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16.5
|
The Vendor
and Purchasers agree that should either Party notify the other Party of
any concern that there has been a breach by the other Party of the
provisions of this Clause 16, the other Party shall co-operate in good
faith with such Party in determining whether such a breach has occurred
and, if such Party determines in its reasonable opinion that the breach is
a material breach, it may elect to treat the breach as a repudiation of
this Agreement by the other Party.
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17.1
|
Each Party acknowledges that
technology, software, services, and commodities provided to any of the
Companies by the Vendor or its Affiliates (or products or technology
derived from them) may be subject to U.S. laws, regulations or
requirements restricting their export, re-export, transfer or release to
certain entities or destinations, including to Persons within the
Companies, Purchasers or its Affiliates or to unrelated third
Parties.
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17.2
|
Each of the Parties will act, and
will procure (as to the Vendor, prior to Completion and as to the
Purchasers, after Completion) that the Companies to act, in accordance
with all U.S. export control and economic sanctions laws, regulations, and
requirements, to the extent such laws, regulations, and
requirements are applicable to the Companies, the applicable Party or
the subject technology, software, services, commodities or any product
that the Companies or either Party creates with U.S.-origin content that
is supplied by the Vendor or its
Affiliates.
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17.3
|
Further, each Party and its
Affiliates will refrain from acting in a manner that would have the effect
of causing the other Party or its Affiliates to violate any such laws,
regulations or requirements.
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17.4
|
Except as set forth on Schedule
17.4, t
he Vendor represents and warrants that the
Companies: (1) have complied and are currently in compliance
with all applicable U.S. economic sanctions and export control laws,
regulations, requirements and restrictions; and (2) are not the
subject of any pending enforcement actions or voluntary disclosures in
connection with such laws, regulations, and restrictions. The
Vendor shall indemnify the Purchasers for any and all losses or other
damages resulting from penalties imposed by U.S. authorities for economic
sanctions or export control violations occurring prior to the Completion
Date.
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17.5
|
For the
avoidance of doubt all of the representations and warranties of the
Parties contained in this Clause 17 shall expire and be without further
force and effect upon Completion.
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18.1
|
This Agreement (together with the
schedules and exhibits hereto) and the Confidentiality Agreement contains
the entire agreement and understanding of the Parties and supersedes all
prior agreements, understandings or arrangements (both oral and written)
relating to the subject matter of this Agreement (and any such
document).
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18.2
|
Each of the Parties acknowledges
and agrees that:
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|
18.2.1
|
it does not
enter into this Agreement and the documents referred to herein on the
basis of and does not rely, and has not relied, upon any statement or
representation or warranty or other provision (in any case whether oral,
written, express or implied) made, given or agreed to by any Person
(whether a Party to this Agreement or not) except those expressly set out
or referred to in this Agreement and the documents referred to herein;
and
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|
18.2.2
|
this Clause
18.2 shall not apply to any statement, representation or warranty made
fraudulently or to any provision of this Agreement which was induced by,
or otherwise entered into as a result of, fraud, for which the remedies
shall be all those available under the law governing this
Agreement.
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19.1
|
Except with
the prior consent of the other Parties, no Party may assign this Agreement
or any benefit, interest, right or obligation which arises under, out of,
or in connection with this Agreement, whether such assignment is effected
in connection with the sale of such Party’s assets or through an
insolvency proceeding or otherwise,
provided
that
(a) the Purchasers may assign and/or novate their rights, interest and
obligations hereunder, without the consent of the Vendor, to any Affiliate
of the Purchasers that (i) is in the same line of business as the
Purchasers or is a special purpose entity not engaged in any business and
(ii) is and remains after such assignment an Person with respect to which
Mr. Rubens Ometto Silveira Mello (or his lawful heirs) shall have the
right to appoint at least a majority of the board of directors or other
applicable governing body; and provided that such assignee’s obligations
shall be guaranteed by Purchasers and (b) the Vendor may assign and/or
novate its rights, interest and obligations hereunder, without the consent
of the Purchasers, to any Affiliate of the Vendor so long as (i) the
obligations of such assignee shall be guaranteed by the Vendor or another
Affiliate of the Vendor with the same or higher net worth and (ii) if such
assignment is prior to the Completion Date, such assignment is in
connection with the transfer of the entire membership in the Parent
Co-Operatives; and
provided
,
further
, that,
in the case of any such assignment of this Agreement by the Companies,
such assignment is made contemporaneously with, and to the same assignee
in respect of, any assignment by the Companies of the Fuels Trademark
Agreement and the Lubes Trademark
Agreement.
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20.1
|
Any notification required or
permitted to be given under this Agreement shall be given in writing and
under appropriate confidential cover. The notice shall be
delivered personally or sent by reputable international carrier, or by fax
to the Party due to receive such notice at the following address (or at
such other address as may be notified in writing by the relevant Party to
the other):
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|
The
Vendor:
|
|
|
ExxonMobil International Holdings
B.V
|
|
|
c/o Exxon Mobil
Corporation
|
|
|
3225 Gallows
Road
|
|
|
Fairfax, Virginia
22037
|
|
|
Attention: Downstream General
Counsel
|
|
|
Tel: 703-846-4000
|
|
|
Fax: 703-846-2316
|
|
|
With copies
to:
|
|
|
3225 Gallows
Road
|
|
|
Fairfax, Virginia
22037
|
|
|
Attention: General Tax Counsel,
Downstream
|
|
|
Tel: 703-846-7935
|
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Fax: 703-846-1919
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1155 Avenue of the
Americas
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New York, New York
10036
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Attention: Oliver C.
Brahmst
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Tel: 212-819-8200
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Fax: 212-354-8113
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Barbosa, M
ü
ssnich & Arag
ã
o
Advogados
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Av. Presidente Juscelino
Kubitschek, 50, 4th floor
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S
ão Paulo, SP
04543-000
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Attention: Daniela H.
Soares
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Tel: +55 11 3365
5279
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Fax: +55 11 3365
4598
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20.2
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Any notice delivered personally
shall be deemed to be received when delivered. Any notice sent
by pre-paid express courier such as DHL or Federal Express shall be deemed
(in the absence of evidence of earlier receipt) to be received 96 hours
after despatch. In proving the time of despatch it shall be
sufficient to show that the envelope containing such
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notice was
properly addressed, pre-paid and delivered to the express
courier. Any notice by fax shall be deemed to be received at
the moment it is sent, if there is hard copy confirmation by the fax
machine that the fax was transmitted satisfactorily
and provided that the sender can
show that it has sought and received confirmation (by electronic mail or
by fax) that the original fax notice has been received and printed out in
full at the correct destination under Clause 20.1). For any
notice regarding any Excluded COFINS Matter or Excluded Business Claims
shall be sent by pre-paid courier and
faxed.
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No variation of this Agreement
shall be effective unless made in writing and signed by or on behalf of
each Party. No waiver of any right under this Agreement shall
be effective unless in writing. Unless expressly state
otherwise, a waiver shall be effective only in the circumstances for which
it is given. No delay or omission by any Party in exercising
any right or remedy provided by law or under this Agreement shall
constitute a waiver of such right or remedy. The single or
partial exercise of a right or remedy shall not preclude any other nor
restrict any further exercise of any such right or
remedy.
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This Agreement may be executed in
two or more counterparts, each of which when executed and delivered shall
constitute an original, both of which shall together constitute one and
the same instrument.
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26.1
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No waiver of
any right under this Agreement shall be effective unless in
writing. Unless expressly stated otherwise a waiver shall be
effective only in the circumstances for which it is
given.
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26.2
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No delay or
omission by any Party in exercising any right or remedy provided by law or
under this Agreement shall constitute a waiver of such right or
remedy.
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26.3
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The single or
partial exercise of a right or remedy under this Agreement shall not
preclude any other nor restrict any further exercise of any such right or
remedy.
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26.4
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Without
limiting the parties’ rights under Clause 25, the rights and remedies
provided in this Agreement are cumulative and do not exclude any other
rights or remedies provided by applicable Legislation (including, without
limitation, any remedies at law),
provided
,
however
, any
limitations set forth in this Agreement with respect to the liability of
either Party shall be equally applicable to all the relevant rights and
remedies provided under this
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Agreement and
all other available rights and remedies provided by applicable
Legislation. There is no right to
set-off.
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27.1
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This
Agreement shall inure to the benefit of and be binding upon the Parties
and each of their respective successors and permitted assigns, and nothing
herein, express or implied, is intended to confer upon any other Person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
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28.1
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If any term,
provision, agreement, covenant or restriction of this Agreement is held by
a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, agreements,
covenants and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party
hereto. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent
of the Parties as closely as possible in a reasonably acceptable manner in
order that the transactions contemplated hereby may be consummated as
originally contemplated to the fullest extent
possible.
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29.1
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Each of the
representations, warranties, covenants and agreements of the Purchasers
contained in this Agreement are joint and several obligations of the
Purchasers. Each of the representations, warranties, covenants and
agreements of the Vendor contained in this Agreement are joint and several
obligations of the Persons compromising the
Vendor.
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EXXONMOBIL
INTERNATIONAL HOLDINGS B.V
|
COSAN
S/A INDUSTRIA E COMERCIO
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||||
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Signature:
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Signature:
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||||
| /s/ Stafford T. Kelly | /s/ Rubens Ometto Silveira Mello | ||||
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Name:
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STAFFORD T. KELLY |
Name:
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RUBENS OMETTO
SILVEIRA MELLO
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||
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Title:
|
ATTORNEY-IN-FACT |
Title:
|
PRESIDENT | ||
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Signature:
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|||||
| /s/ Marcos Lutz | |||||
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Name:
|
MARCOS LUTZ | ||||
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Title:
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COMMERCIAL VICE-PRESIDENT | ||||
|
USINA
DA BARRA S.A. AÇÚCAR E ÁLCOOL
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|||||
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Signature:
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|||||
| /s/ Rubens Ometto Silveira Mello | |||||
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Name:
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RUBENS OMETTO
SILVEIRA MELLO
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||||
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Title:
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CEO | ||||
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Signature:
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|||||
| /s/ Marcelo Scarcela Portela | |||||
|
Name:
|
MARCELO SCARCELA PORTELA | ||||
|
Title:
|
ATTORNEY-IN-FACT | ||||