Schedule 13D


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NameSchedule 13D
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PARTIES

 

(1)

COSAN S.A. INDÚSTRIA E COMÉRCIO, a company organized and existing under the laws of Brazil, with its head office at Avenida Presidente Juscelino Kubitschek nº 1327, 4º andar, sala 01, Bairro Vila Nova Conceiçăo, enrolled with the Brazilian tax registry under No. 50.746.577/0001-15 (“ Cosan ”);

 

 

(2)

COSAN DISTRIBUIDORA DE COMBUSTÍVEIS LTDA., a company organized and existing under the laws of Brazil, with its head office at Fazenda Pau D’Alho, s/nº, Prédio Administrativo Cosan, in the City of Barra Bonita, State of Săo Paulo, CEP 17340-000, enrolled with the Brazilian tax registry under No. 02.041.195/0001-43 (“ Cosan Downstream Holdco ”);

 

 

(3)

COSAN LIMITED, a company incorporated under the laws of Bermuda and whose registered office is at Crawford House, 50 Cedar Avenue, Hamilton HM 11, Bermuda (“ Cosan Limited ”);

 

 

(4)

HOUCHES HOLDINGS S.A., a company organized and existing under the laws of Brazil, with its head office at Rua Funchal, 418, Andar 11 Sala 09G, in the City of Săo Paulo, State of Săo Paulo, CEP 04.551-060, enrolled with the Brazilian tax registry under No. 10.773.432/0001-99 (the “ Management Co ”);

 

 

(5)

SHELL BRAZIL HOLDING B.V., a company incorporated under the laws of the Netherlands with registered number 27192050 0000 and whose registered office is at Carel van Bylandtlaan 30, 2596HR ‘s-Gravenhage, The Netherlands (“ Shell ”);

 

 

(6)

SHELL BRASIL LIMITADA, a company organized and existing under the laws of Brazil, with its head office at Avenida das Américas, 4.200, blocos 5 e 6, Barra da Tijuca in the City of Rio de Janeiro, State of Rio de Janeiro, CEP 22640-102, enrolled with the Brazilian tax registry under No. 33.453.598/0001-23 (“ Shell Brasil Limitada ” or the “ Downstream Co ”);

 

 

(7)

SHELL OVERSEAS HOLDINGS LIMITED, a company incorporated under the laws of England with registered number 00596107 and whose registered office is at Shell Centre, London, SE1 7NA (“ Shell UK Co ”); and

 

 

(8)

RAIZEN ENERGIA S.A. (formerly known as MILIMÉTRICA PARTICIPAÇƠES S.A.), a company organized and existing under the laws of Brazil, with its head office at Fazenda Pau D’Alho, s/nº, Prédio Administrativo Cosan, Sala 07, in the City of Barra Bonita, State of Săo Paulo, CEP 17340-000, enrolled with the Brazilian tax registry under No. 12.182.297/0001-32 (the “ Sugar and Ethanol Co ”),

 

 

each hereafter referred to as a “Party” and together as the “Parties”.

 
 

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RECITALS

 

(A)

Pursuant to the Framework Agreement (as defined below), the Parties have agreed to establish the Joint Venture to combine certain of the assets of Cosan and Shell, primarily in Brazil.

 

 

(B)

In accordance with the Framework Agreement, the Parties are working together towards the transfer of the Transfer Assets to the JV Entities and the establishment of the Joint Venture in accordance with the terms of the Transaction Documents.

 

 

(C)

As at the date of this Agreement certain conditions to Closing have not yet been satisfied, as further detailed in this Agreement. However, the Parties intend that, at or after Closing, Cosan and Shell will share the Economic Benefits and Burdens of the Cosan Transfer Assets and the Shell Transfer Assets for the Business Risk Sharing Period as if Closing had occurred on 1 April 2011 as further detailed in this Agreement.

 

 

(D)

No Transfer Assets will be contributed to the Joint Venture before the Closing Date and the provisions of the Framework Agreement relating to the contribution of the Transfer Assets (including Clause 2 and Schedule 7 of the Framework Agreement) shall remain.

 

 

(E)

Each of Cosan and Shell shall continue to manage and operate its respective business independently in accordance with the terms of the Framework Agreement and all applicable laws and regulations, and nothing in this Agreement shall affect the ability of either Cosan or Shell to exercise Control over its respective business.

 

 

(F)

The Parties have agreed to amend the Framework Agreement to reflect this intention and certain other matters as further set out in this Agreement.



THE PARTIES AGREE AS FOLLOWS:

 

1.

INTERPRETATION AND DEFINITIONS

 

 

1.1

Definitions

 

 

 

1.1.1

In this Agreement “Framework Agreement” means the framework agreement dated 25 August 2010 made between the Parties.

 

 

 

 

1.1.2

Unless a contrary indication appears, capitalized terms used in this Agreement shall have the same meanings given to them in the Framework Agreement.

 

 

 

1.2

Construction

 

 

 

Clause 1.2 (Construction) of the Framework Agreement shall apply to this Agreement as if it were set out herein, but as if references in that clause to the Framework Agreement were references to this Agreement.

 
 

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2.

CONDITIONS

 

 

2.1

Fully Satisfied Conditions

 

 

 

The Parties confirm that the conditions set out in Clauses 5.1.1(a), 5.1.1(b), 5.1.1(c), 5.1.2(d), 5.1.3(b) and 5.1.3(g) of the Framework Agreement have been satisfied, and each Party hereby irrevocably waives any right to assert the failure of any such condition as a basis for such Party’s right not to effect the Closing.

 

 

2.2

Waived Conditions

 

 

 

The Cosan Parties irrevocably waive the conditions set out in Clauses 5.1.2(a) and 5.1.2(b)(i) of the Framework Agreement and the Shell Parties irrevocably waive the condition set out in Clauses 5.1.3(a), 5.1.3(c)(i), 5.1.3(e), 5.1.3(f)(ii) and 5.1.3(i) (subject to the Pasadena Waiver (as defined below)) of the Framework Agreement, and each Party hereby irrevocably waives any right to assert the failure of any such condition as a basis for such Party’s right not to effect the Closing.

 

 

2.3

Outstanding Conditions

 

 

 

The Parties agree as follows:

 

 

 

 

2.3.1

the obligations of the Cosan Parties and the Shell Parties to effect the Closing remain conditional upon the satisfaction or waiver by the Cosan Parties and the Shell Parties of the condition set out in Clause 5.1.1(d) of the Framework Agreement (as amended by Clause 3.6.1 of this Agreement);

 

 

 

 

2.3.2

the obligations of the Cosan Parties to effect the Closing remain conditional upon the satisfaction or waiver by the Cosan Parties of the conditions set out in Clauses 5.1.2(b)(ii) and 5.1.2(c) of the Framework Agreement; and

 

 

 

 

2.3.3

the obligations of the Shell Parties to effect the Closing remain conditional upon the satisfaction or waiver by the Shell Parties of the conditions set out in Clauses 5.1.3(c)(ii) (as amended by Clause 3.6.2 of this Agreement), 5.1.3(d), 5.1.3(f)(i) and 5.1.3(h) of the Framework Agreement.

 

 

 

2.4

Restructuring

 

 

 

The Parties acknowledge and confirm that the Cosan Restructuring is in progress and that all steps of the Cosan Restructuring have been implemented other than those set out in Schedule 1 to this Agreement which remain outstanding and that the Shell Restructuring is in progress and that all steps of the Shell Restructuring have been imiplemented other than those set out in Schedule 2 to this Agreement which remain outstanding.

 

 

 

 

3.

AMENDMENTS TO THE FRAMEWORK AGREEMENT

 

 

3.1

Global Changes

 

 

3.1.1

Each reference to “Closing Date Exchange Rate” in the Framework Agreement is amended to read “Business Risk Sharing Date Exchange Rate”.

 
 

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3.1.2

Each reference to “Sugar Retail” in the Framework Agreement is amended to read “Retail Sugar”.

 

 

3.2

Definitions

 

 

 

3.2.1

All references to “Closing” and “Closing Date” in the following definitions in Clause 1.1 of the Framework Agreement are amended to read “Business Risk Sharing” and “Business Risk Sharing Date”, respectively:

 

 

 

 

 

“Accounts Payable”;

 

 

 

 

 

“Accounts Receivable”;

 

 

 

 

 

“Cosan Excess Debt”;

 

 

 

 

 

“Debt”;

 

 

 

 

 

“Pre-Closing Liabilities”; and

 

 

 

 

 

“Rebranding Payment”.

 

 

 

 

3.2.2

The definition of Agreed Form in Clause 1.1 of the Framework Agreement is amended by the deletion of the words “on or before the date of this Agreement”.

 

 

 

 

3.2.3

The definition of Brazilian GAAP in Clause 1.1 of the Framework Agreement is amended by the insertion of the words “as at the date of the preparation of the relevant accounts” after the word “Brazil”.

 

 

 

 

3.2.4

The definition of Closing Date Exchange Rate in Clause 1.1 of the Framework Agreement is deleted.

 

 

 

 

3.2.5

The definition of Cosan Downstream IP in Clause 1.1 of the Framework Agreement is amended by the insertion of the parenthetical “(both formal and informal)” after “Intellectual Property”.

 

 

 

 

3.2.6

The definition of Financial Risk Management Principles in Clause 1.1 of the Framework Agreement is deleted.

 

 

 

 

3.2.7

The definition of HSSE and SD Transition Plan in Clause 1.1 of the Framework Agreement is amended by the deletion of the words “, to be adopted by each JV Entity at Closing”.

 

 

 

 

3.2.8

The definition of Indemnifiable Matter in Clause 1.1 of the Framework Agreement is deleted and replaced by the insertion of a new definition as follows:

 

 

 

 

 

““Indemnifiable Matter” means:

 

 

 

 

 

(a)

any failure of any Warranty made by an Indemnifying Party in whole or in part to be true, accurate and not misleading on, and as of, the Business Risk Sharing Date; provided that each such Warranty shall, for this purpose, be read without any qualification therein relating to Material Adverse Change, materiality or immateriality or any similar qualification or standard;

 
 

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(b)

any failure of any Closing Warranty made by an Indemnifying Party in whole or in part to be true, accurate and not misleading on and as of the Closing Date; provided that each such Closing Warranty shall, for this purpose, be read without any qualification therein relating to Material Adverse Change, materiality or immateriality or any similar qualification or standard;

 

 

 

 

 

 

(c)

any Covenant made by an Indemnifying Party which such Indemnifying Party has failed to fulfil in whole or in part in all material respects;

 

 

 

 

 

 

(d)

any Notified Matter;

 

 

 

 

 

 

(e)

all Cosan Pre-Closing Liabilities (where Cosan is the Indemnifying Party) or all Shell Pre-Closing Liabilities (where Shell is the Indemnifying Party); and/or

 

 

 

 

 

 

(f)

in the case of Cosan being the Indemnifying Party, all Cosan Excluded Liabilities or, in the case of Shell being the Indemnifying Party, all Shell Excluded Liabilities,

 

 

 

 

 

but excluding the Non-Contingent Liabilities except to the extent not paid in full when due by Cosan or Shell (as applicable);”

 

 

 

 

3.2.9

The definition of Longstop Date in Clause 1.1 of the Framework Agreement is deleted and replaced by the insertion of a new definition as follows:

 

 

 

 

 

““Longstop Date” means the date which is 365 days or, at the election of either Cosan or Shell (by prior notice in writing to the Parties), 545 days, after the date of this Agreement, or, as otherwise agreed in writing between the Parties;”

 

 

 

 

3.2.10

The definition of Restricted Cash in Clause 1.1 of the Framework Agreement is amended by the insertion of the words “ but excluding any Margin Call Reserved Cash” immediately after the word “Cash”.

 

 

 

 

3.2.11

The definition of Retail and Aviation Lubricants Agency Prepayment in Clause 1.1 of the Framework Agreement is amended by replacing the words “equal to US$248,000,000” with the words “in the BRL equivalent of US$248,000,000 calculated on the Business Risk Sharing Date”.

 

 

 

 

3.2.12

The definition of Shell IT Agreement in Clause 1.1 of the Framework Agreement is deleted.

 

 

 

 

3.2.13

The definition of Third Party Claims in Clause 1.1 of the Framework Agreement is amended by the insertion of the words “or against” after the word “by”.

 
 

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3.2.14

The definition of Trading Risk Management Principles in Clause 1.1 of the Framework Agreement is amended by the insertion of the words “, in Agreed Form,” immediately after the words “trading risk management principles”.

 

 

 

 

 

 

3.2.15

Clause 1.1 of the Framework Agreement is amended by the insertion of the following definitions, in alphabetical order among the definitions otherwise contained in the Framework Agreement:

 

 

 

 

 

 

 

Accounting Calculation Date” means close of business on 31st March 2011;

 

 

 

 

 

 

 

Assignment and Assumption Agreement of Sugar Cane Supply Contracts” means the assignment agreement in the Agreed Form relating to any sugar-cane supply contracts related to the Cosan S&E Business of more than 365 days in original duration;

 

 

 

 

 

 

 

Business Risk Sharing” means the transfer of the Economic Benefits and Burdens subject to and in accordance with Clause 1A of this Agreement;

 

 

 

 

 

 

 

Business Risk Sharing Date” means 1st April 2011;

 

 

 

 

 

 

 

Business Risk Sharing Date Exchange Rate” means the BRL-US$ exchange rate as at the Business Risk Sharing Date determined in accordance with Clause 17 ( Currency Conversion );

 

 

 

 

 

 

 

Business Risk Sharing Period” means the period from the Business Risk Sharing Date to the Closing Date (inclusive);

 

 

 

 

 

 

 

“CDI Rate” means, with respect to the adjustment of any amount on any applicable date of determination, the percentage that corresponds to the accumulated variation of the Brazilian interbank rate for 1-day certificate of deposits (CDI) as calculated and disclosed by CETIP (Balcăo Organizado de Ativos e Derivativos) during any given period as specified herein; it being understood that such calculation shall be that disclosed by CETIP at its url location (currently http://www.cetip.com.br/ ) or such other successor page or service as determined in good faith by Cosan and Shell for the purpose of performing accumulated calculations of CDI rates for such periods;

 

 

 

 

 

 

 

Closing Warranties” means the Cosan Closing Warranties and the Shell Closing Warranties and “ Closing Warranty ” shall be construed accordingly;

 

 

 

 

 

 

 

Cosan Closing Warranties” means the warranties set out in paragraphs 1, 3, 4.6, 7.1, 7.2, 8.4, 9.1.2, 9.2, 10.1, 10.2, 10.3, 11.2, 15 and 20 of Schedule 9;

 

 

 

 

 

 

 

Derivatives Policies” means the Interim Commodities and Derivatives Policies and the Treasury Policies;

 

 

 

 

 

 

 

Economic Benefits and Burdens” means the economic benefits of ownership, including all revenues, profits, income and appreciation, dividends and distributions, proceeds of any disposition, sale, liquidation or insurance claims and the associated burdens of ownership, including liabilities, losses, costs, Taxes and other charges   other than any such liabilities, losses, costs, Taxes or other charges caused by a breach of this Agreement;
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