Exhibit
10.1


 


SHARE
PURCHASE AGREEMENT


 


THIS SHARE PURCHASE AGREEMENT (this “Agreement”) is made
and entered into as of the Effective Time, by and between Bunge Limited, a
Bermuda corporation, (“Seller”),
and Solae Holdings LLC, a Delaware limited liability company (“Purchaser”).  Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the LLC Agreement.


 


RECITALS


 


WHEREAS, Central Soya, Purchaser and E.I. du Pont de
Nemours and Company (“DuPont”)
have entered into that certain Amended and Restated Limited Liability Company
Agreement on an even date herewith (the “LLC Agreement”) which contemplates the
transactions to be consummated hereby;


 


WHEREAS, Seller is the controlling shareholder of
Bunge Brasil S.A., a corporation organized under the laws of Brazil and Bunge
Brazil S.A. is the sole shareholder of Bunge Alimentos S.A., a corporation
organized under the laws of Brazil;


 


WHEREAS, Bunge Alimentos S.A. currently owns all
right, title and interest in and to the Brazilian Assets;


 


WHEREAS, prior to the Closing, Bunge Alimentos S.A.
will contribute the Brazilian Assets to its Wholly Owned Affiliate, Solae do
Brasil Ind. Com. Alimentos Ltda., a corporation organized under the laws of
Brazil (“Solae Brasil”);


 


WHEREAS, prior to the Closing, Bunge Alimentos S.A.
will deliver Solae Brasil’s shares to Bunge Brasil S.A. by way of a capital
reduction so that Bunge Brasil S.A. will be the sole shareholder of Solae
Brasil;


 


WHEREAS, prior to the Closing, Seller will cause Bunge
Brasil S.A. to spin-off the shares of Solae Brasil into Solae do Brasil
Holdings S.A., a to-be formed corporation organized under the laws of Brazil (“Solae Brasil Holdings”)
(the “Spin-Off”);


 


WHEREAS, after the Spin-Off and prior to the Closing,
Seller will own all right, title and interest in and to the Shares and Solae
Brasil Holdings will be the sole shareholder of Solae Brasil;


 


WHEREAS, at the Closing, Purchaser will purchase from
Seller, and Seller will sell to Purchaser, all right, title and interest in and
to the Shares.


 


NOW, THEREFORE, in consideration of the mutual
promises and representations, warranties, covenants and agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:


 

















 


ARTICLE I


 


DEFINITIONS


 


Section 1.01           Definitions.


 


As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):


 


“Actions”  is defined in Section 5.01(e).


 


“Adjustment Amount”
is defined in Section 2.04(a).


 


“Affiliate” means,
with respect to any Person (i) any Person directly or indirectly controlling,
controlled by or under common control with such Person (ii) any officer,
director, general partner, member or trustee of such Person or (iii) any Person
who is an officer, director, general partner, member or trustee of any Person
described in clauses (i) or (ii) of this sentence; provided, however, that for
purposes of this Agreement, none of Seller or Central Soya shall be deemed to
be an Affiliate of DuPont.  For purposes
of this definition, the terms “controlling”, “controlled by” or “under common
control with” shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.


 


“Agreement”  is defined in the preamble.


 


“Applicable Law” means all applicable
laws, statutes, treaties, rules, codes,


ordinances,
regulations, standards, permits, certificates, orders, interpretations and
licenses of any Governmental Authority and judgments, decrees, injunctions,
writs, orders or like action of any court, arbitrator or other judicial or
quasi-judicial tribunal of competent jurisdiction (including those pertaining
to health, safety of the environment or otherwise).


 


“Assumed
Liabilities” means
(a) all debts, liabilities and obligations arising out of the operations
of Solae Brasil Holdings and/or Solae Brasil, but only to the extent that any
such debt, liability or obligation is for, relates to and arises during time
periods after the Closing Date and (b) all debts, liabilities and obligations
of Solae Brasil Holdings and/or Solae Brasil existing immediately prior to the
Closing and listed as Assumed Liabilities on Schedule 1.01(a).


 


“Audit Statement”
is defined in Section 2.04(a).


 


“Brazilian Assets” is defined in Section 5.01(f)(v).


 


“Central Soya”
means Central Soya Company, Inc., an Indiana corporation and an indirect
subsidiary of Seller.


 


“Claim Notice” is defined in Section 8.04.


 


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“Claims” means all rights, claims,
credits, causes of action or rights of setoff.


 


“Closing” means Seller’s sale to
Purchaser, and Purchaser’s purchase from Seller, of the Shares.


 


“Closing Date” means date on which the
Closing actually takes place.


 


“Damages” means any and all
liabilities, obligations, losses, direct damages, penalties, fines, assessments
(whether criminal or civil), Claims, injuries, suits, judgments, costs,
expenses (including without limitation, reasonable legal fees and expenses and
costs of litigation), disbursements or demands whatsoever, howsoever arising.


 


“DuPont”
is defined in the recitals.


 


“Excluded
Liabilities” means (a) all debts, liabilities and
obligations listed as Excluded Liabilities on Schedule 1.01(a) and
(b) all debts, liabilities and obligations of Seller, Solae Brasil Holdings
and/or Solae Brasil other than the Assumed Liabilities.


 


“Excluded Tax
Liabilities” means
any liability for Tax arising with respect to Seller, Solae Brasil Holdings or
Solae Brasil that is incurred during, or is attributable to, any Pre-Closing
Tax Period, Seller’s Income Taxes or any other Tax payable by Seller, Solae
Brasil Holdings or Solae Brasil to the extent that such other Tax is payable as
a result of an inaccuracy in a representation or warranty set forth in Section
5.01(g) hereof.


 


“Finance Loans” means
the loans to the Purchaser from DuPont for Purchaser’s purchase of the Shares
and the acquisition of the minority ownership interest in Solae Brasil Holdings
which Finance Loans shall be at rates not greater than market rates and on
terms reasonable and customary for a similar third party loan.


 


“Governmental Authority”  means
any federal, state, county, municipal, foreign, international, regional or
other governmental authority, agency, board, bureau, body or instrumentality.


 


“Holdings Assets”
means the assets owned by Solae Brasil Holdings.


 


“Indemnified Party”
is defined in Section 8.04.


 


“Indemnifying Party” is defined in
Section 8.04.


 


“Intellectual Property” means patents, trade marks, service
marks, logos, trade names, internet domain names, rights in designs, copyright
(including rights in computer software), database rights, semi-conductor
topography rights, utility models, rights in know-how and other intellectual
property rights, in each case whether registered or unregistered and including
applications for registration, and all rights or forms of protection having
equivalent or


 


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similar effect anywhere in the
world owned by Seller (or its Affiliates) that are necessary to own,
operate or use the Holdings Assets or the Brazilian Assets.


 


“Lien” means
any mortgage, lien, pledge, claim, charge, security interest, title defect or
encumbrance of any kind with respect to any asset, including any conditional
sale or other title retention agreement, any lease in the nature thereof, or
the filing of or agreement to give any financing statement, other than any
Permitted Lien.


 


“LLC Agreement” is defined in the recitals.


 


“Material Adverse Effect” means any
events, changes, circumstances or effects that, individually or in the
aggregate, have a material adverse effect on Solae Brasil Holdings, Solae
Brasil, the Shares, the Holdings Assets or the Brazilian Assets, or on Seller’s
ability to consummate the transactions contemplated by this Agreement, except
(a) any events, changes, circumstances or effects related to general economic,
regulatory or political conditions or from terrorist acts, declared or
undeclared war or other hostilities or (b) events, changes, circumstances or
effects that affect the general industry in which Solae Brasil Holdings or
Solae Brasil operate or the Holdings Assets or the Brazilian Assets are used.


 


“Maximum Purchaser Cost” is defined in Section 6.04(b).


 


“Minority Interest”
means all of the issued and outstanding capital stock of Solae Brasil Holdings
other than the Shares.


 


“Ordinary Course”
is defined in Section 2.04(a).


 


“Permits”  means all licenses, permits, registrations,
authorizations or approvals from any Governmental Authority or public or
self-regulatory body.


 


“Permitted Lien”
means any of the following: (a) Liens for Taxes accrued but not yet due or for
Taxes the validity of which is being contested in good faith by appropriate
proceedings and for which adequate provision has been made, (b) any Lien that,
either individually or in the aggregate, would not have a Material Adverse
Effect on the asset which is subject to the Lien and (c) statutory carriers’,
warehousemen’s workmen’s or mechanics’ Liens or other like Liens with respect
to any asset incurred in the Ordinary Course that are not yet delinquent or are
being contested in good faith.


 


“Person”  means an individual,
partnership (general or limited), limited liability company, corporation,
statutory trust, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.


 


“Pre-Closing Tax Period” means any Tax period ending on or
before the close of business on the Closing Date, or, in the case of any Tax
period that includes, but does not end on, the Closing Date, the portion of
such period up to and including the Closing Date.


 


“Purchase Period” is defined in Section 6.04(a).


 


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“Purchase Price” is defined in Section
2.02.


 


“Purchaser” is defined in the
preamble.


 


“Seller”
is defined in the preamble.


 


“Seller’s Income
Taxes” means
any Tax that is based on, or measured by, net income, in whole or in part, and
that is payable by Seller, for any period, or Solae Brasil Holdings or Solae
Brasil, for any Pre-Closing Tax Period (including, without limitation, any such
Tax for which Seller, Solae Brasil Holdings or Solae Brasil has liability as a
transferee, or under Treas. Reg. Section 1.1502-6 (or any provision of state,
local or foreign law comparable to Section 1.1502-6)).


 


“Seller Indemnitee”
means Seller, any of its Affiliates (other than Purchaser) and any of their
directors, officers, employees, agents, successors and assigns.


 


“Shares”
means 677,563,283 ordinary shares representing approximately eighty-two point
twenty-three percent (82.23%) of all of the issued and outstanding capital
stock of Solae Brasil Holdings.


 


“Solae Brasil”
is defined in the recitals.


 


“Solae Brasil
Holdings”  is defined in the recitals.


 


“Spin-Off”
is defined in the recitals.


 


“Taxes” means
all taxes of any kind, including without limitation, those on, or measured by
or referred to as net income, alternative or other minimum tax, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, capital,
paid-up capital, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profits tax, customs, duties or similar fees, assessments or charges of any
kind whatsoever, together with any interest and any penalties, additions to tax
or additional amounts imposed by any taxing authority, domestic or foreign, in
respect of such Taxes.


 


“Tender Offer” is defined in Section 6.04(a).


 


“Tender Offer Costs” is defined in Section 6.04(c).


 


“Tender Offer Price” is defined in Section 6.04(a).


 


Section 1.02           Certain References.


 


Unless otherwise indicated,
references in this Agreement to articles, sections, paragraphs, clauses,
recitals and schedules are to the same contained in or attached to this Agreement.


 


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ARTICLE II


 


PURCHASE AND
SALE OF THE SHARES


 


Section 2.01           Purchase and Sale.  On the terms and subject to the
conditions set forth in this Agreement, at the Closing, Purchaser shall
purchase from Seller, and Seller shall sell, transfer, assign, convey and
deliver to Purchaser all of Seller’s right, title and interest in and to the
Shares.


 


Section 2.02           Purchase
Price.  The price per Share of the
Shares shall be $ 0.377515 United States Dollars.  Simultaneously with the purchase and sale of the Shares as
provided in Section 2.01, Purchaser shall pay to Seller by wire transfer of
immediately available funds to the account designated by Seller (which account
shall have been designated by Seller at least two (2) business days prior to
the Closing Date) an amount in cash equal to Two Hundred Fifty-Five Million
Seven Hundred Ninety Thousand Three Hundred and Two United States Dollars
($255,790,302) (the “Purchase
Price”).


 


Section 2.03           Closing.  The Closing shall take place at the offices
of Potter Anderson & Corroon LLP, Hercules Plaza, 1313 N. Market St.,
Wilmington, DE 19801 no later than five (5) business days after the date when
each of the conditions specified in Articles III and IV hereof has been fulfilled
(or waived by the party entitled to waive that condition) or on such other date
and time and/or at such other place mutually designated by Seller and
Purchaser.  Subject to the provisions of
Article VII, failure to consummate the Closing on the date and time and at the
place determined pursuant to this Section 2.03 shall not result in the
termination of this Agreement and will not relieve any party of any obligation
under this Agreement.


 


Section 2.04           Treatment
of Assumed Liabilities.


 


(a)           Purchaser,
Solae Brasil Holdings and Solae Brasil shall be responsible and liable for
their respective Assumed Liabilities. 
Within the ninety (90) day period following the Closing Date, Central
Soya and DuPont (jointly or individually) shall be permitted to conduct an
audit of the Seller’s and each of Solae Brasil Holdings’ and Solae Brasil’s
books, records, financial statements and other accounting information directly
relating to (i) the Assumed Liabilities listed on Schedule 1.01(a)
and (ii) Solae Brasil Holdings’ or Solae Brasil’s  inventory, receivables or other liabilities to determine if, at
and prior to the Closing, (A) such books, records, financial statements and
other accounting information were maintained, and such Assumed Liabilities,
inventory, receivables and other liabilities were incurred, paid, acquired,
maintained and/or collected, by the Seller, Solae Brasil Holdings or Solae
Brasil, as the case may be, in the ordinary course of business, consistent with
their respective past practices (the “Ordinary Course”) and (B) the balances in
Solae Brasil Holdings’ and Solae Brasil’s Assumed Liabilities, inventory,
receivables and other liabilities accounts are consistent with balances
maintained in the Ordinary Course (subject only to adjustment for seasonality
and material changes in economic and business conditions).  Within thirty (30) days following such
audit, DuPont or Central Soya may deliver to Seller a statement (an “Audit Statement”)
setting forth in reasonable detail each case in which DuPont and/or Central
Soya believes in good faith that


 


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Seller, Solae Brasil Holdings and/or Solae Brasil (1) failed to
maintain such books, records, financial statements or other accounting
information in the Ordinary Course, (2) failed to incur, pay, acquire, maintain
and/or collect such Assumed Liabilities, inventory, receivables or other
liabilities in the Ordinary Course or (3) failed to maintain balances in such
Assumed Liabilities, inventory, receivables or other liabilities accounts at
levels consistent with the Ordinary Course (adjusted for seasonality and
material changes in economic and business conditions) and each adverse monetary
effect such failure had on such Assumed Liabilities, receivables, inventories
or other liabilities (each, an “Adjustment Amount”). 
Within thirty (30) days following Seller’s receipt of an Audit
Statement, Seller shall notify Purchaser, DuPont and Central Soya of any
dispute it may have with respect to each Adjustment Amount reflected in such
Audit Statement and such disputes shall be submitted to the Board of Managers
for resolution.  If the Board of
Managers is unable to unanimously agree upon a resolution to all or any of such
disputes within fifteen (15) days following their submission, the remaining
disputes shall be submitted for resolution to a nationally recognized
independent accounting firm that is not the primary auditor of any of the
Members and that is unanimously chosen by the Board of Managers, whose
resolution shall be final and binding on the parties.  If the Board of Managers is unable to unanimously agree upon such
an accounting firm, DuPont and Central Soya shall each select such an
accounting firm and such accounting firms shall select a third nationally recognized
independent accounting firm, that is not the primary auditor of any of the
Members, to resolve the disputes.


 


(b)           If
Purchaser, or any other Person directly or indirectly owned by the Purchaser
incurs or suffers any actual Damages arising out of or relating to any
Adjustment Amount as finally determined pursuant to Section 2.04(a) above,
Seller shall indemnify and hold harmless Purchaser and any other Person
directly or indirectly owned by Purchaser from such actual Damages.


 


ARTICLE
III


 


PURCHASER’S
CONDITIONS PRECEDENT TO CLOSING


 


Purchaser’s obligation to purchase the Shares and to
take the other actions required to be taken by Purchaser at the Closing is
subject to the satisfaction, at the Closing, of each of the following
conditions (any of which may be waived by Purchaser, in whole or in part):


 


Section 3.01           Continuation
of the Company.  DuPont, Central Soya and Purchaser shall have duly authorized, executed
and delivered the LLC Agreement and taken such other actions as shall be
necessary for the continuation of Purchaser as a limited liability company duly
organized under the laws of the State of Delaware.


 


Section 3.02           Consents
and Approvals.  All of the consents and approvals
listed on Schedule 5.02(f), if any, shall have been obtained.  


 


Section 3.03           Filings
and Registrations.  All of the filings and
registrations listed on Schedule 5.02(c), if any, shall have been made.


 


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Section 3.04             No Adverse Proceedings; No
Prohibition.  There
shall be no Action threatened, filed or pending against Seller, Purchaser,
Solae Brasil Holdings or Solae Brasil which seeks to restrain, prohibit or
invalidate the transactions contemplated hereunder, or would, if adversely
determined to Seller, Purchaser, Solae Brasil Holdings or Solae Brasil,
constitute a Material Adverse Effect. 
Neither the consummation nor the performance of any of the transactions
contemplated under this Agreement will, directly or indirectly (with or without
notice or lapse of time) result in a material violation of any Applicable Law,
except for such material violations that, individually or in the aggregate,
would not have a Material Adverse Effect.


 


Section 3.05           No
Destruction.  Since July 1, 2002,
except as may be disclosed in Schedule 5.01(f), no destruction of,
damage to, or loss of, any Brazilian Asset (whether or not insured) that has
not been repaired or replaced in excess of $250,000 shall have occurred.


 


Section 3.06           No Material Adverse Effect.  Since July 1, 2002, no event or occurrence that would
result in a Material Adverse Effect or would reasonably be likely to result in
a Material Adverse Effect shall have occurred.


 


Section 3.07           Accuracy
of Representations and Warranties.  All of Seller’s representations and warranties in
this Agreement must be true and correct in all material respects as of the
Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case they shall be true and
correct in all material respects as of such earlier date), and in each case
except for breaches as to matters that, individually or in the aggregate, would
not have a Material Adverse Effect.


 


Section 3.08           Seller’s Performance.  All of the covenants and obligations that
Seller is required to perform or to comply with pursuant to this Agreement at
or prior to the Closing shall have been duly performed and complied with in all
material respects, and in each case except for noncompliance as to matters
that, individually or in the aggregate, would not have a Material Adverse
Effect.


 


Section 3.09           Seller’s Deliveries.  Seller shall have delivered to Purchaser certificates
representing the Shares, duly endorsed (or accompanied by duly executed stock
powers), for transfer of the Shares to Purchaser, together with any stock
transfer stamps or receipts for any transfer taxes required to be paid thereon
as a result of the transactions contemplated under this Agreement.  Seller shall have delivered to Purchaser a
certificate executed by an authorized officer of Seller and dated as of the
Closing Date certifying that (a) each of Seller’s representations and
warranties set forth in this Agreement are true and correct in all material
respects as of the Closing Date as if made on the Closing Date and (b) attached hereto is a true and
complete copy of the resolutions adopted by its governing body authorizing
Seller’s execution, delivery and performance of this Agreement and each other
document or instrument which is to be delivered by it in connection with this
Agreement and Seller’s consummation of the transactions contemplated hereby and
thereby, and that such resolutions have not been modified, rescinded, or
amended and are in full force and effect.


 


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Section 3.10           Finance Loan. Central Soya’s designees on the Board of Managers of Purchaser
shall have approved the Finance Loan.


 


ARTICLE
IV


 


SELLER’S
CONDITIONS PRECEDENT TO CLOSING


 


Seller’s obligation to sell the Shares and to take the
other actions required to be taken by Seller at the Closing is subject to the
satisfaction, at the Closing, of each of the following conditions (any of which
may be waived by Seller, in whole or in part):


 


 Section 4.01          Continuation of the Company.  DuPont, Central Soya and Purchaser shall
have duly authorized, executed and delivered the LLC Agreement and taken such
other actions as shall be necessary for the continuation of Purchaser as a
limited liability company duly organized under the laws of the State of
Delaware.


 


Section 4.02           Consents
and Approvals.  All of the consents and approvals
listed on Schedule 5.01(m), if any, shall have been obtained.  


 


Section 4.03           Filings
and Registrations.  All of the filings and
registrations listed on Schedule 5.01(d), if any, shall have been made.


 


Section 4.04             No Adverse Proceedings; No
Prohibition.  There
shall be no Action threatened, filed or pending against Seller, Purchaser,
Solae Brasil Holdings or Solae Brasil which seeks to restrain, prohibit or
invalidate the transactions contemplated hereunder, or would, if adversely
determined to Seller, Purchaser, Solae Brasil Holdings or Solae Brasil, have a
material adverse effect on Purchaser’s ability to consummate the transactions
contemplated by this Agreement.  Neither
the consummation nor the performance of any of the transactions contemplated
under this Agreement will, directly or indirectly (with or without notice or
lapse of time) result in a material violation of any Applicable Law, except for
such material violations that, individually or in the aggregate, would not have
a material adverse effect on Purchaser’s ability to consummate the transactions
contemplated by this Agreement.


 


Section 4.05           Accuracy
of Representations and Warranties.  All of Purchaser’s representations and warranties
in this Agreement must be true and correct in all material respects as of the
Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case they shall be true and
correct in all material respects as of such earlier date), and in each case
except for breaches as to matters that, individually or in the aggregate, would
not have a material adverse effect on Purchaser’s ability to consummate
the transactions contemplated by this Agreement.


 


Section 4.06           Purchaser’s Performance.  All of the covenants and obligations that
Purchaser is required to perform or to comply with pursuant to this Agreement
at or prior to the Closing shall have been duly performed and complied with in
all material respects, and in each case except for noncompliance as to matters
that, individually or in the aggregate, would not have a material adverse
effect on Purchaser’s ability to consummate the transactions


 


9

















 


contemplated by this Agreement.


 


Section 4.07           Purchaser’s Deliveries.  Purchaser shall have delivered to Seller the
Purchase Price by wire transfer of immediately available funds to the
account designated by Seller (which account shall have been designated by
Seller at least two (2) business days prior to the Closing Date).  Purchaser shall have delivered to Seller a
certificate executed by an authorized officer of Purchaser and dated as of the
Closing Date certifying that (a) each of Purchaser’s representations and
warranties set forth in this Agreement are true and correct in all material
respects as of the Closing date as if made on the Closing Date and (b) that attached hereto is a true and
complete copy of the resolutions adopted by its governing body authorizing
Purchaser’s execution, delivery and performance of this Agreement and each
other document or instrument which is to be delivered by it in connection with
this Agreement and Purchaser’s consummation of the transactions contemplated
hereby and thereby, and that such resolutions have not been modified,
rescinded, or amended and are in full force and effect.


 


ARTICLE V


 


REPRESENTATIONS
AND WARRANTIES


 


Section 5.01           Representations
and Warranties of Seller.


 


Seller hereby represents and warrants to Purchaser
that as of the date hereof, or as of the Closing, when so expressly provided
herein:


 


(a)           Organization.  (i) Seller is a corporation, duly organized
and validly existing under the laws of Bermuda with all requisite power and
authority to own, lease and operate its properties and assets and to carry on
its business as now being conducted, and (ii) each of Solae Brasil Holdings (at
Closing) and Solae Brasil is a corporation, duly organized and validly existing
under the laws of Brazil with all requisite power and authority to own, lease
and operate its properties and assets and to carry on its business as now being
conducted.


 


(b)           Qualification.  (i) Seller is duly licensed or qualified to
do business as a foreign entity  in
all jurisdictions in which the property owned or leased by it or the activities
conducted by it require it to be so qualified (except where the failure to so
qualify would not have a material adverse effect on the ability of Seller to
perform its obligations under this Agreement), and (ii) each of Solae Brasil
Holdings (at Closing) and Solae Brasil is duly licensed or qualified to do
business as a foreign entity in all jurisdictions in which the property owned
or leased by it or the activities conducted by it require it to be so qualified
(except where the failure to so qualify would not have a Material Adverse
Effect).


 


(c)           Authority.  (i) Seller has the power and authority to
execute and deliver this Agreement and to carry out its obligations hereunder
and to consummate the transactions contemplated hereby, (ii) the execution
and delivery by Seller of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly authorized by the governing
body of Seller, (iii) no other action on the part of Seller or any other Person,
whether pursuant to its constituent documents or by law or otherwise, is
necessary to authorize Seller to enter into this Agreement, or to consummate
the transactions contemplated hereby, (iv) this 


 


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Agreement has been duly executed
and delivered by Seller and (v) thisAgreement is the legal, valid and binding
obligation of Seller, enforceable against Seller, in accordance with its terms.


 


(d)           No Violation.  Except as set forth on Schedule 5.01(d),
neither the execution nor delivery of this Agreement, nor the consummation of
the transactions contemplated hereby: (i) requires any filing or registration
with, notification to, permission of or any action or order by any Governmental
Authority with respect to Seller, Solae Brasil Holdings, Solae Brasil or the
Shares, (ii) (A) violates or will violate any order, writ, injunction,
judgment, decree or award or (B) violates or will violate or conflict with any
Applicable Law to which Seller, Solae Brasil Holdings or Solae Brasil (or any
of their properties or assets or their businesses) or the Shares are subject as
of the Closing Date, (iii) violates or will violate, or conflicts with or will
conflict with any provision of, or constitutes a default under the constituent documents
of Seller, Solae Brasil Holdings or Solae Brasil, (iv) conflicts with,
violates, breaches or constitutes a material default (or an event which, with
notice or lapse of time or both, would constitute a material default) under,
requires any consent under, or gives rise to a right to terminate, amend,
accelerate, suspend, revoke or cancel any mortgage, contract, agreement, deed
of trust, license, lease or other instrument, arrangement, commitment,
obligation, understanding or restriction of any kind to which Seller, Solae
Brasil Holdings or Solae Brasil is a party or by which their properties may be
subject or bound, or (v) results in the creation or imposition of any Lien in
favor of any third party with respect to the Holdings Assets or the Brazilian
Assets, and in the case of this clause (iv) above, which conflict, violation,
breach, default, liability or obligation, individually or in the aggregate, has
or would reasonably be likely to have (1) a Material Adverse Effect or (2) a
material adverse effect on the ability of Seller or, following the Closing
Date, Purchaser to perform its obligations under this Agreement or to own the
Shares in the manner in which the Shares are currently owned.


 


(e)           Litigation.  Except as set forth on Schedule 5.01(e),
there are no actions, suits, Claims or proceedings (“Actions”) pending
or, to the knowledge of Seller, Solae Brasil Holdings or Solae Brasil,
threatened, that relate to Solae Brasil Holdings, Solae Brasil or the Shares
which individually or in the aggregate (i) have, or could be reasonably likely
to have, a material adverse effect on the ability of Purchaser, following the
Closing Date, to own the Shares in the manner in which the Shares were owned
and used by Seller immediately prior to the Closing; (ii) could reasonably
be expected to affect the legality, validity or enforceability of this
Agreement or the consummation of the transactions contemplated hereby; or (iii)
could reasonably be likely to have a Material Adverse Effect.  There are no Actions pending or, to the
knowledge of Seller, threatened, that question or challenge the validity of
this Agreement or any action taken or to be taken by Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby.


 


(f)            Title.


 


(i)            As of the
Closing, Seller will own and have good and marketable title to all of the
Shares, in each case free and clear of all Liens;


 


(ii)           Immediately
following the Closing, Purchaser shall own and have good and marketable title
to all of the Shares, in each case free and clear of all Liens;


 


11

















 


(iii)          As of the
Closing and immediately following the Closing, Solae Brasil Holdings will own
and have good and marketable title to one hundred percent (100%) of all of the
issued and outstanding shares of capital stock of Solae Brasil, in each case
free and clear of all Liens (other than Permitted Liens);


 


(iv)          As of the
Closing and immediately following the Closing, Solae Brasil Holdings will own
and have good and marketable title to all of the Holdings Assets, in each case
free and clear of all Liens (other than Permitted Liens);


 


(v)           As of the
Closing and immediately following the Closing, Solae Brasil will own and have
good and marketable title to all of its assets (the “Brazilian Assets”)
(including, but not limited to, those Brazilian Assets set forth in Schedule
5.01(f)), in each case free and clear of all Liens (other than Permitted
Liens);


 


(g)           Taxes.  Each of Seller, Solae Brasil Holdings and
Solae Brasil have duly filed all returns or reports with respect to any Taxes
required to be filed by it, which returns or reports are true, correct and
complete in all material respects.  Each
of Seller, Solae Brasil Holdings and Solae Brasil have paid all Taxes reflected
in such returns and reports and all other Taxes due from it to any Governmental
Authority (except for those Taxes properly contested and accrued for).  Except as disclosed in Schedule 5.01(g),
there are no Liens for Taxes on any of the Holdings Assets or the Brazilian
Assets. All Taxes of each of Seller, Solae Brasil Holdings and Solae Brasil
have been paid by it on or before the due date therefor (except for those Taxes
properly contested and accrued for).


 


(h)           Brokers.  Neither Seller nor its Affiliates has
incurred or will incur any broker’s, finder’s, investment banking or similar
fee in connection with the transactions completed by this Agreement, and
neither Seller nor its Affiliates has made any statement or representation that
could form the basis for any claim for any such fee.


 


(i)            Permits.  As of the Closing, Seller or its Affiliates
will have all Permits that are required for the ownership, use and
operation of the Holdings Assets and the Brazilian Assets (including, without
limitation, environmental Permits), except for Permits the absence of which do
not have a Material Adverse Effect.  As
of the Closing, none of Seller, Solae Brasil Holdings or Solae Brasil will be
in default in respect of any Permits, except for defaults that, individually or
in the aggregate, do not have and will not have a Material Adverse Effect.  As of the Closing, there will be no pending,
and none of Solae Brasil Holdings, Solae Brasil or Seller has any knowledge of any threatened,
proceedings that could result in the termination or impairment of any Permits
with respect to the Holdings Assets or the Brazilian Assets.


 


(j)                                     Intellectual
Property.


 


(i)            All material registrations and
filings, including maintenance and renewal fees, necessary to preserve the
rights of Seller
(and its Affiliates) in respect of the Intellectual Property that
consist of patents, patent applications, continuations, continuations in part,
divisions, reissues, extensions, substitutions and supplemental protection
certificates thereof


 


12

















 


and registered trademarks and trade names, and recipes have been made
and are in good standing;


 


(ii)           No Claims have been made and no
proceedings have been instituted or are pending that challenge any material rights
with respect to the ownership, use, validity or enforceability of the
Intellectual Property.  Neither Seller nor its Affiliates
are subject to any outstanding injunction, judgment, order, decree, ruling or
settlement involving the Intellectual Property;


 


(iii)          The Intellectual Property constitutes
all of the intellectual property that is reasonably necessary to own, operate
and use the Holdings Assets and the Brazilian Assets as currently owned,
operated and used and constitutes all of the material intellectual property
used to own, operate and use the Holdings Assets and the Brazilian Assets as
currently owned, operated and used;


(iv)          Except as set forth in Schedule
5.01(j), Solae Brasil Holdings owns all right, title and interest in, or
has the right to use, its respective part of the Intellectual Property relating
to the Holdings Assets;


 


(v)           Except as set forth in Schedule
5.01(j), Solae Brasil owns all right, title and interest in, or has the
right to use, its respective part of the Intellectual Property relating to the
Brazilian Assets;


 


(vi)          To each of Solae Brasil Holdings’, Solae Brasil’s and Seller’s knowledge, neither Seller nor its Affiliates
nor end users of products have infringed upon or misappropriated any
intellectual property rights of any third party in the ownership, operation or
use of the Holdings Assets or the Brazilian
Assets;


 


(vii)         Neither Seller nor its Affiliates
have threatened or instituted a Claim against any Person alleging that such
Person infringes the Intellectual Property;


 


(viii)        Except as set forth in Schedule
5.01(j), neither Seller
nor its Affiliates have granted to any Person any options, licenses or
agreements relating to the Intellectual Property; and


 


(ix)           Neither Seller nor its Affiliates
have agreed to indemnify any Person against any charge of infringement arising
out of the ownership, operation or use of the Holdings Assets or the Brazilian Assets.


 


(k)                                  Assets;
Shares.


 


 (i)           The
Holdings Assets and the Brazilian Assets constitute all of the assets necessary
to operate Seller’s soy protein food ingredients business in Brazil as
currently operated by Seller;


 


(ii)           Immediately following the Closing,
each of Solae Brasil Holdings and Solae Brasil shall have the right to own,
operate and use all of their respective Holdings Assets and Brazilian Assets to
the same extent they are currently owned, operated and used;


 


13

















 


(iii)           As of the Closing, the Shares and the
Minority Interest will constitute all of the issued and outstanding capital
stock of Solae Brasil Holdings;


 


(iv)          No Action has been made or asserted or
is pending and, to the knowledge of Solae Brasil Holdings, Solae Brasil or
Seller, no Action has been threatened, either (A) based upon or challenging or seeking
to deny or restrict the ownership, operation or use by Solae Brasil Holdings or
Solae Brasil of any of the Holdings Assets of the Brazilian Assets or (B)
alleging that any services provided, or products manufactured or sold, or
intangible property being licensed or used, with respect to the Holdings Assets
or the Brazilian Assets, are being manufactured, sold, provided, licensed or
used in violation of any intellectual property rights.


 


(v)           No Action has been made or asserted
or is pending and, to the knowledge of Solae Brasil Holdings, Solae Brasil or
Seller, no Action has been threatened, based upon or challenging or seeking to
deny or restrict Seller’s ownership of the Shares.


 


(l)            Compliance with Applicable Law;
Adverse Restrictions.  The operations relating to the Holdings
Assets and the Brazilian Assets are being conducted in material compliance with
(i) all applicable Permits and orders, writs, injunctions, judgments, decrees
or awards of all courts and (ii) all Applicable Laws.  The Holdings Assets and the Brazilian Assets are currently owned,
operated and used in compliance in all material respects with all Applicable
Laws.  Neither Seller nor its Affiliates
have received, during the two (2) years prior to the date of this Agreement,
any written notice from a Governmental Authority that alleges that Seller or
its Affiliates are in violation of any Applicable Law, except for such
violations that, individually or in the aggregate, would not have a Material
Adverse Effect.


 


(m)          Consents; Approvals.  Except as set forth in Schedule 5.01(m),
Seller has
obtained all material consents, approvals and authorizations necessary for the
consummation by it of the transactions contemplated by this Agreement.


 


(n)           Ordinary
Course; No Destruction; No Material Adverse Effect.  Since July 1, 2002 (i) the Holdings Assets
and the Brazilian
Assets have been used and operated in the Ordinary Course, (ii) the
Assumed Liabilities listed on Schedule 1.01(a) and Solae Brasil
Holdings’ and Solae Brasil’s other liabilities have been incurred and paid in
the Ordinary Course, (iii) Solae Brasil Holdings’ and Solae Brasil’s inventory
and receivables have been acquired, maintained and/or collected in the Ordinary
Course, (iv) except as may be disclosed on Schedule 5.01(f), no destruction
of, or damage to, or loss of, any of the Holdings Assets or the Brazilian
Assets (whether or not insured) that has not been repaired or replaced in
excess of $250,000 has occurred and (v) no event or occurrence that would
result in a Material Adverse Effect or would reasonably be likely to result in
a Material Adverse Effect has occurred.


 


(o)           Books
and Records.  Since July 1, 2002,
Solae Brasil Holdings, Solae Brasil and Seller have maintained their books and
records in the Ordinary Course and in accordance with the generally accepted
accounting principles then in effect in their jurisdictions.


 


Section 5.02           Representations
and Warranties of Purchaser.


 


Purchaser hereby
represents and warrants to Seller that as of the date hereof:


 


14

















 


(a)           Organization.  Purchaser is a limited liability company,
duly organized and validly existing under the laws of the state of Delaware
with all requisite power and authority to own, lease and operate its properties
and assets and to carry on its business as now being conducted.


 


(b)           Authority.  (i) Purchaser has the power and authority to
execute and deliver this Agreement and to carry out its obligations hereunder
and to consummate the transactions contemplated hereby, (ii) the execution
and delivery by Purchaser of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly authorized by the governing
body of Purchaser, (iii) no other action on the part of Purchaser or any other
person or entity, whether pursuant to its constituent documents or by law or
otherwise, are necessary to authorize Purchaser to enter into this Agreement,
or to consummate the transactions contemplated hereby, (iv) this Agreement has
been duly executed and delivered by Purchaser and (v) this Agreement is
the legal, valid and binding obligation of Purchaser, enforceable against
Purchaser, in accordance with its terms.


 


(c)           No
Violation.  Except as set forth on Schedule
5.02(c), neither the execution nor delivery of this Agreement, nor the
consummation of the transactions contemplated hereby: (i) requires any filing
or registration with, notification to, permission of or any action or order by
any Governmental Authority with respect to Purchaser, (ii) (A) violates or will
violate any order, writ, injunction, judgment, decree or award or (B) violates
or will violate or conflict with any Applicable Law to which Purchaser or any
of its properties or assets or its businesses are subject as of the Closing
Date, (iii) violates or will violate, or conflicts with or will conflict with
any provision of, or constitutes a default under the constituent documents of
Purchaser, or (iv) conflicts with, violates, breaches or constitutes a
material default (or an event which, with notice or lapse of time or both,
would constitute a material default) under, requires any consent under, or
gives rise to a right to terminate, amend, accelerate, suspend, revoke or
cancel any mortgage, contract, agreement, deed of trust, license, lease or
other instrument, arrangement, commitment, obligation, understanding or
restriction of any kind to which Purchaser is a party or by which its
properties may be subject or bound, and in the case of this clause (iv), which
conflict, violation, breach, default, liability or obligation, individually or
in the aggregate, would have or reasonably be likely to have a material adverse
effect on the ability of Purchaser to perform its obligations under this
Agreement.


 


(d)           Litigation.  There are no Actions pending or, to the
knowledge of Purchaser, threatened, that relate to Purchaser which individually
or in the aggregate could reasonably be expected to affect the legality,
validity or enforceability of this Agreement or the consummation of the
transactions contemplated hereby.  There
are no Actions pending or, to the knowledge of Purchaser, threatened, that
question or challenge the validity of this Agreement or any action taken or to
be taken by Purchaser pursuant to this Agreement or in connection with the
transactions contemplated hereby.


 


(e)           Brokers. 
Neither Purchaser nor its Affiliates has incurred or will incur any
broker’s, finder’s, investment banking or similar fee in connection with the
transactions completed by this Agreement, and neither Purchaser nor its
Affiliates has made any statement or representation that could form the basis
for any claim for any such fee.


 


15

















 


(f)            Consents;
Approvals.  Except as set forth on Schedule
5.02(f), Purchaser
has obtained all material consents, approvals and authorizations
necessary for the consummation by it of the transactions contemplated by this
Agreement.


 


ARTICLE VI


 


COVENANTS


 


Section 6.01           Access; Post Closing Cooperation.  Between
the date of this Agreement and the Closing, Seller will, and will cause Solae
Brasil Holdings and Solae Brasil to, afford Purchaser and its authorized
representatives reasonable access, during normal business hours and upon
reasonable notice to Seller, Solae Brasil Holdings and Solae Brasil, to the
personnel, properties, contracts, books and records, and other documents and
data of Solae Brasil Holdings and Solae Brasil; provided, however, that such
access does not unreasonably disrupt the normal operations of Seller, Solae
Brasil Holdings or Solae Brasil. From and after the Closing, Purchaser
will afford Seller, its counsel and accountants, during normal business hours
and upon reasonable notice and without unreasonable interference with the
operation of Purchaser’s business, reasonable access to any books and records
in its possession relating to Solae Brasil Holdings and Solae Brasil with
respect to periods before the Closing Date and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably required
in connection with (a) the preparation of financial statements and tax returns
or in connection with any Tax audit, (b) the determination or enforcement of
rights and obligations under this Agreement, (c) compliance with the
requirements of any Governmental Authority, (d) the determination or
enforcement of the rights and obligations of any indemnified party or (e) in
connection with any actual or threatened Action, except to the extent that
furnishing any such books or records or portion thereof pursuant to this
Section 6.01 would violate any Applicable Law, order, contract or Permit
applicable to either party or by which any of their respective assets and
properties are bound.


 


Section 6.02           Cooperation.  To the extent that any Permits, Claims or
contracts relating to the ownership or use of any of the Holdings Assets or the
Brazilian Assets require consent to any of the transactions contemplated
hereunder (including, but not limited to, any change of control provisions with
respect thereto) or the satisfaction of some other condition as a result of the
transactions contemplated hereunder, and such consent has not been obtained or
condition satisfied as of the Closing Date, each of the parties hereto agrees
to use its commercially reasonable best efforts (including, but not limited to,
cooperating with the other in any reasonable arrangement) to enable Seller and
its Affiliates to perform their obligations thereunder, and to provide for
Purchaser and its Affiliates the benefits thereof, including without limitation,
enforcement at reasonable cost, and for the account of Purchaser or its
Affiliates (as the case may be), of any and all rights of any of Seller or its
Affiliates against the other party thereto arising out of the breach or
cancellation thereof by such other party or otherwise. Seller shall promptly
pay to Purchaser or its Affiliates (as the case may be) all monies received by
Seller or any of its Affiliates in connection with any of the foregoing.


 


16

















 


Section 6.03           Confidentiality.  After the Closing, except as otherwise consented to in writing by
Purchaser, Seller shall not, and shall cause its Affiliates to not, divulge,
furnish or make available to any person (other than Purchaser or its Affiliates)
any proprietary or confidential information of Purchaser, Solae Brasil Holdings
or Solae Brasil.  This Section 6.03
shall not apply to any such proprietary information which (i) shall have
entered the public domain or become generally available through no act of such
Seller, (ii) shall have become available to Seller from a third party whom
Seller reasonably believes is not obligated to keep such proprietary
information confidential or (iii) shall be required by any Applicable Law,
legal process, legal proceeding or any Governmental Authority to be disclosed;
provided that Seller shall give reasonably prompt notice of such requirement to
Purchaser so that Purchaser may seek an appropriate protective order and shall
not make the disclosed information available to other parties unless clause (i)
or (ii) above applies thereto.


 


Section 6.04           Buy-out
of Minority Interest. (a) After the Closing, Purchaser shall make a stock
tender offer for all of the Minority Interest in accordance with Brazilian law
(the “Tender Offer”)
at a price per share equal to $0.302012 United States Dollars (the “Tender Offer Price”).  Purchaser shall use its commercially
reasonable best efforts for a period of at least one hundred eighty (180) days
from the commencement of the Tender Offer, or such longer period as all of the
Members of Purchaser may agree (the “Purchase Period”), to purchase the Minority
Interest and to minimize any costs associated therewith.


 


(b) 
Notwithstanding anything contained herein to the contrary, in no event shall
Purchaser be required to pay in excess of forty-four million two hundred and
nine thousand six hundred and eighty-eight United States Dollars ($44,209,688)
in connection with the acquisition of the Minority Interest pursuant to the
Tender Offer (the “Maximum
Purchaser Cost”).


 


(c)  All of the
actual costs in connection with the Tender Offer (excluding the purchase price
paid to purchase the Minority Interest in an amount not to exceed the Maximum
Purchaser Cost) and any other liabilities incurred by Purchaser in connection
with the Tender Offer (including, without limitation, Damages paid to third
parties with respect to any of the claims made against Purchaser in connection
with the Tender Offer) other than Damages resulting from the negligent acts or
omissions of Purchaser (the “Tender Offer Costs”) shall be borne by Seller.  The Tender Offer Costs shall be paid by
Seller to Purchaser within five (5) days following Seller’s receipt of
Purchaser’s demand therefore; provided, however, that Purchaser shall not make
such a demand prior to the termination of the Purchase Period.


 


Section 6.05           No
Closing.  In the event the Closing
does not occur on or before June 1, 2003, and unless the parties hereto
otherwise mutually agree in writing, Solae Brasil, Seller and Purchaser shall
enter into a toll manufacturing agreement which will provide that all
production from Solae Brasil’s Esteio, Brasil facility will be sold exclusively
to Solae, LLC for resale. The parties agree that the economic terms of the toll
manufacturing agreement shall be structured in a manner to provide Purchaser
and Solae, LLC, on the one hand and Solae Brasil Holdings and Solae Brasil, on
the other hand, with the comparable economic terms the parties would have
experienced if Purchaser had acquired the Shares as contemplated by this
Agreement; provided, however, that no portion of the Purchase Price for the
Shares shall be paid by Purchaser to Seller until the Closing.


 


17

















 


 


Section 6.06           Operation
of the Business.  Between the date of this Agreement and the
Closing Date, Seller shall, and shall cause Solae Brasil Holdings and Solae
Brasil to, use commercially reasonable best efforts to conduct Solae Brasil
Holdings and Solae Brasil’s business (including, but not limited to, such
business relating to the Brazilian Assets) in the Ordinary Course. Between the
date of this Agreement and the Closing Date, Solae Brasil shall not, and Seller
shall cause Solae Brasil not to, sell, transfer or otherwise dispose of any
Brazilian Asset, other than in the Ordinary Course.


 


Section 6.07           Fats and Oils Plant.  In the event of the relocation by Seller or
any of its Affiliates of all or any portion of the fats and oils plant
currently owned by Bunge Alimentos S.A., located at Esteio, Brazil, Seller or
one or more of its Affiliates shall be responsible, held liable and pay for all
costs related thereto.


 


Section 6.08           Best Efforts.  Seller shall use its best efforts to obtain
the consents set forth on Schedule 5.01(m) and take all other actions
necessary to consummate the sale of the Shares on or before May 1, 2003.


 


Section 6.09           Insurance.  Seller shall provide or cause to be provided
(a) insurance for the Holdings Assets and the Brazilian Assets through Seller’s
existing property insurance until the Closing (b) general liability insurance
for the operations of the Holdings Assets and the Brazilian Assets through
Seller’s existing general liability insurance until the Closing (c) vehicle
insurance for vehicles constituting the Holdings Assets or the Brazilian Assets
through Seller’s existing vehicle insurance until the Closing and (d) marine
coverage for the operations of the Holdings Assets and the Brazilian Assets
through Seller’s existing marine coverage until the Closing.


 


ARTICLE
VII


 


TERMINATION


 


Section 7.01           Termination
Events.  This Agreement may, by
written notice given prior to or at the Closing, be terminated:


 


(a)           by mutual written agreement of Purchaser and
Seller;


 


(b)           by Purchaser upon a material breach by Seller of
any covenant, representation, warranty or other agreement of Seller contained
in this Agreement which material breach if not cured would have a Material
Adverse Effect or a material adverse effect on Purchaser, and such breach is
incapable of being cured or shall not have been cured within thirty (30) days
following Seller’s receipt of
written notice of such material breach and in each case except for material
breaches as to matters that, individually or in the aggregate, would not have a
Material Adverse Effect or a material adverse effect on Purchaser;


 


(c)           by Seller upon a material breach by Purchaser of
any covenant, representation, warranty or other agreement of Purchaser
contained in this Agreement which


 


18

















 


material breach if not cured would have a
material adverse effect on Purchaser’s ability to perform its obligations under
this Agreement or to consummate the transactions contemplated by this
Agreement, and such breach is incapable of being cured or shall not have been
cured within thirty (30) days following Purchaser’s receipt of written notice of such material
breach;


 


(d)           by Purchaser if the Closing does not occur on or before June 1, 2003 and Solae Brasil, Seller and Purchaser have
not entered into the toll manufacturing agreement as contemplated in Section
6.05 on or before July 1, 2003; or


 


(e)           by Purchaser or Seller if a toll manufacturing
agreement as contemplated in Section 6.05 is entered into and subsequently
terminated (pursuant to the terms of such toll manufacturing agreement).


 


Section 7.02           Effect of Termination. Each
party’s right of termination under Section 7.01 hereof is in addition to any
other rights it may have under this Agreement or otherwise, and the exercise of
a right of termination will not be an election of remedies.  If this Agreement is terminated pursuant to
Section 7.01 hereof, all further obligations of the parties under this
Agreement shall terminate, except that the obligations in Sections 6.03, 6.05,
6.07 and 9.18 shall survive; provided, however, that if this Agreement is
terminated by a party because one or more of the conditions to the terminating
party’s obligations under this Agreement is not satisfied as a result of the
other party’s fault, the terminating party’s right to pursue all legal remedies
will survive such termination unimpaired.


 


ARTICLE
VIII


 


SURVIVAL
AND INDEMNIFICATION


 


Section 8.01           Survival;
Indemnification.


 


(a)           The covenants, agreements,
representations and warranties of Seller and Purchaser contained herein or in
any certificate or other writing delivered pursuant hereto or in connection
herewith and any indemnification obligations relating thereto shall survive for
a period of three (3) years after the Closing Date; provided, however that,
with respect to Taxes, any covenants, agreements, indemnity obligations,
representations or warranties shall survive until 180 days after the expiration
of the applicable statutory period of limitations (giving effect to any waiver
or extension thereof).  Notwithstanding
the preceding sentence, any covenant, agreement, representation or warranty in
respect of which indemnity may be sought hereunder shall survive the time at
which it would otherwise terminate pursuant to such sentence if notice of the inaccuracy
or breach thereof giving rise to such indemnity shall have been given to the
party against whom such indemnity may be sought, prior to such time.


 


(b)           Seller  hereby agrees to indemnify Purchaser against and to hold it
harmless from any and all actual Damages incurred or suffered by Purchaser
arising out of or relating to:


 


19

















 


(i)            the breach of
any representation or warranty made by Seller contained in this Agreement or in
any document delivered by Seller pursuant to this Agreement;


 


(ii)           the breach or
non-fulfillment of any covenant or agreement to be performed by Seller
contained in this Agreement; or


 


(iii)          any Excluded
Liability.


 


(c)           Purchaser hereby agrees to
indemnify each Seller Indemnitee against and to hold it harmless from any and
all actual Damages incurred or suffered by such Seller Indemnitee arising out
of or relating to:


 


(i)            the breach of
any representation or warranty made by Purchaser contained in this Agreement or
in any document delivered by Purchaser pursuant to this Agreement;


 


(ii)           the breach or
non-fulfillment of any covenant or agreement to be performed by Purchaser
contained in this Agreement; or


 


(iii)          any Assumed Liability.


 


To the extent that a party’s
indemnification obligations set forth in this Section 8.01 may be unenforceable
because it is violative of any Applicable Law or public policy, the
Indemnifying Party will contribute the maximum portion that it is permitted to
pay and satisfy under Applicable Law to the payment and satisfaction of all
actual Damages incurred by the indemnified party.


 


Section 8.02           Liability
Threshold.


 


No indemnification
shall be payable by an Indemnifying Party as a result of a claim arising under
Section 8.01(b)(i) or 8.01(c)(i) unless the aggregate amount of all such actual
Damages thereunder (other than those Damages relating to Taxes) exceeds an
amount equal to $1,000,000 and then the Indemnifying Party shall have liability
for the full amount of such actual Damages; provided, however, the $1,000,000
aggregate amount shall not apply for claims or Damages related to Tax matters
pursuant to Section 8.03.


 


Section 8.03           Tax
Indemnification.


 


(a)           Seller shall be responsible for all
Excluded Tax Liabilities and shall indemnify each Purchaser against any Damages
relating to an Excluded Tax Liability. 
Upon the incurrence of any Damages by Purchaser relating to an Excluded
Tax Liability, Seller shall indemnify Purchaser against such Damages by paying
to Purchaser in U.S. dollars an amount equal to the amount of such
Damages.  Purchaser shall deliver to
Seller, upon the incurrence of any Damages relating to an Excluded Tax
Liability by Purchaser, written notice describing such Damages and stating the
amount thereof, the amount of the indemnity payment requested and the first
date on which Purchaser is required (without incurring interest or penalties)
to make any payment with respect to or as a result of such Damages.


 


20

















 


(b)           In the case of any Taxes that are
imposed, assessed or asserted on a periodic basis and that are payable for a
Taxable period that includes (but does not end on) the Closing Date, the
portion of such Taxes related to or incurred in or attributable to the
Pre-Closing Tax Period shall (i) in the case of any Tax other than a Tax
imposed on, measured by or related to revenue, gross or net income, receipts,
gains or compensation, be deemed to be the amount of such Tax for the entire
taxable period multiplied by a fraction the numerator of which is the number of
days in the Pre-Closing Tax Period and the denominator of which is the number
of days in the entire taxable period and (ii) in the case of any Tax imposed
on, measured by or related to revenues, gross or net income, receipts, gains or
compensation be deemed equal to the amount of such Tax which would be payable
if the taxable period ended on the Closing Date.


 


(c)           If Purchaser receives a refund (or
reduces its Tax liability by using a credit) of any Tax paid or incurred by
Seller in respect of any Pre-Closing Tax Period or any Excluded Tax Liability,
Purchaser will pay to Seller the amount of such refund or credit within thirty
(30) days of the date on which such refund or credit is received or used by
Purchaser.  Purchaser agrees that, upon
the request of Seller, Purchaser shall file (at Seller’s expense) a claim for
refund (in such form as Seller may reasonably request) of any Tax in respect of
the Pre-Closing Tax Period or any Excluded Tax Liability; provided that
Purchaser shall not be required to file such a claim if such claim would
adversely affect the Tax liability of Purchaser.  Seller shall have the sole right to prosecute such claim for
refund (by suit or otherwise) at Seller’s expense and with counsel or other
advisor of Seller’s choice reasonably acceptable to Purchaser; provided that
Purchaser may participate in the prosecution of such claim at its own
expense).  Purchaser agrees that, upon
the request of Seller, it will cooperate reasonably with Seller and its
advisors in connection therewith.


 


(d)           Purchaser agrees to give prompt
notice to Seller of the assertion of any claim, or the commencement of any
suit, action, proceeding, audit or assessment in respect of which indemnity may
be sought hereunder, or under Section 8.01 hereof relating to an Excluded Tax
Liability, and of any Damages (specifying with reasonable particularity the
basis therefor), and Purchaser will give Seller such information with respect
thereto as it reasonably may request. 
Seller may, at its own expense, participate in and, upon notice to
Purchaser, assume the defense of any such suit, action, proceeding or audit
(insofar as it relates to Damages for which Seller is indemnifying Purchaser
under this Article VIII).  Seller (i)
shall thereafter consult with Purchaser upon Purchaser’s reasonable request for
such consultation from time to time with respect to the portion of such suit,
action, proceeding or audit as to which Seller has assumed the defense, and
(ii) shall not agree to any settlement or assert any position with respect to
any Tax if such settlement or position could adversely affect the Tax liability
of Purchaser.  If Seller assumes such
defense, Purchaser shall have the right (but not the duty) to participate in
the defense thereof and to employ counsel or other advisors, at its own
expense, separate from the counsel or advisors employed by Seller. Whether or
not Seller chooses to defend or prosecute any claim, all of the parties hereto
shall reasonably cooperate in the defense or prosecution thereof.


 


(e)           If any adjustment shall be made to
any Tax return relating to Seller in respect of Solae Brasil Holdings or Solae
Brasil for any Pre-Closing Tax Period that results in any Tax detriment to
Seller (or any Affiliate thereof) with respect to such period, and that results
in any Tax benefit to Purchaser for any Taxable period ending after the Closing
Date, Seller shall


 


21

















 


be entitled to the benefit of such
Tax benefit, and Purchaser shall pay to Seller the amount of such Tax benefit
at such time or times as (and to the extent that) Purchaser actually realizes
such benefit through a refund of Tax or reduction in the amount of Tax that
Purchaser otherwise would have had to pay if such adjustment had not been made.


 


(f)            If any adjustment (including any
adjustment arising by reason of a refund claim) shall be made to any Tax return
relating to Purchaser for any Taxable period after the Closing Date that
results in any Tax detriment to Purchaser with respect to such period and that
results in any Tax benefit to Seller (or any Affiliate thereof) for any
Pre-Closing Tax Period, Purchaser shall be entitled to the benefit of such Tax
benefit, and Seller shall pay to Purchaser the amount of such Tax benefit at
such time or times as (and to the extent that) Seller (or any Affiliate
thereof) actually realizes such benefit through a refund of Tax or reduction in
the amount of Tax that Seller or any such Affiliate otherwise would have had to
pay if such adjustment had not been made.


 


Section 8.04           Control
of Litigation.


 


Each Person
entitled to indemnification as provided under Section 8.01 (the “Indemnified Party”)
shall give written notice (the “Claim Notice”) to the Person from whom the Indemnified
Party is seeking indemnification (the “Indemnifying Party”) of the assertion of any
Claim or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought under Section 8.01 hereof and of any Damages which any
such Indemnified Party deems to be within the scope of Section 8.01 within
fifteen (15) days following such assertion, commencement or incurrence of
Damages of which the Indemnified Party is actually aware and shall give the
Indemnifying Party such information with respect thereto as the Indemnifying
Party may reasonably request.  The
Indemnifying Party may, at its option and at its own expense, (a) participate
in and (b) upon written notice to the Indemnified Party, within fifteen (15)
days of receipt of the Claim Notice, assume the defense of, any such suit,
action or proceeding; provided that (i) the counsel of the Indemnifying Party
is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying
Party shall consult with the Indemnified Party, upon the reasonable request of
the Indemnified Party, from time to time with respect to such suit, action or
proceeding and (iii) the Indemnifying Party shall not settle or compromise any
such suit, action or proceeding without the written consent of the Indemnified
Party, which consent shall not be unreasonably withheld; provided, however,
that if the Indemnifying Party reasonably desires to settle or compromise and
the Indemnified Party rejects such reasonable settlement or compromise, then
the Indemnified Party shall be liable for any and all Damages in excess of the
amount of the rejected reasonable settlement or compromise.  If the Indemnifying Party assumes such
defense, the Indemnified Party shall have the right (but not the duty) to participate
in the defense thereof and to employ counsel, at its own expense, separate from
the counsel employed by the Indemnifying Party.  The Indemnifying Party shall be liable for the fees and expenses
of counsel employed by the Indemnified Party with respect to any period during
which the Indemnifying Party has not assumed the defense of any such action or
proceeding in respect of which indemnity is required hereunder; provided,
however, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one counsel employed by the Indemnified Party, in any
jurisdiction, except that if the Indemnified Party has a conflict of interest
with any other Indemnified Party, the Indemnified Party is entitled to have
separate counsel at the expense of the Indemnifying Party until such time as
the Indemnifying Party assumes the defense. 
If the


 


22

















 


Indemnifying Party does not assume
the defense and the Indemnified Party assumes the defense thereof, (A) the
Indemnifying Party shall have the right (but not the duty) to participate in
the defense thereof and employ counsel, at its own expense, (B) such
Indemnified Party shall consult with the Indemnifying Party, upon the
reasonable request of the Indemnifying Party, from time to time with respect to
such suit, action or proceeding and (C) the Indemnified Party shall not settle
or compromise any such suit, action or proceeding without the consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.


 


Section 8.05           Transfer
Taxes.


 


Seller shall pay,
or cause to be paid, all Taxes imposed on the transfer by Seller of the Shares
under this Agreement.


 


Section 8.06           Cooperation
on Tax Matters.


 


Seller and
Purchaser shall cooperate fully, as and to the extent reasonably requested by
the other party, in connection with any audit, litigation or other proceeding
with respect to Taxes.  Such cooperation
shall include the retention and (upon the other party’s reasonable request) the
provision of records and information that are reasonably relevant to any such
audit, litigation or other proceeding, and making employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder.  Purchaser
and Seller agree to retain all books and records that are relevant to the
determination of the Tax liabilities pertinent to Solae Brasil Holdings or
Solae Brasil relating to any Pre-Closing Tax Period until the expiration of the
applicable statute of limitations, and to abide by all records retention
agreements entered into with any taxing authority.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.01           Notices.


 


Any notice, payment, demand, or communication required
or permitted to be given by any provision of this Agreement shall be in writing
and shall be deemed to have been delivered, given, and received for all
purposes (i) if delivered personally to the Person or to an officer of the
Person to whom the same is directed, or (ii) when the same is actually
received, if sent either by a nationally recognized overnight delivery service
or by registered or certified mail, postage and charges prepaid, or by
facsimile, if such facsimile is followed by a hard copy of the facsimile
communication sent promptly thereafter by a nationally recognized overnight delivery
service or by registered or certified mail, postage and charges prepaid,
addressed as follows (or
at such other address for a party as shall be specified by like notice):


 


23

















 


If to Seller:


 


c/o Bunge Management Services, Inc.


50 Main Street, 6th Floor


White Plains, NY 10606


Attn: Drew Burke


Facsimile: (914) 684-3417


 


If to Purchaser:


 


Solae Holdings LLC


1034 Danforth
Drive


St. Louis,
Missouri 63102


United States of
America


Facsimile: (314) 982-2461


 


Section 9.02           Successors
and Assigns and Assignment.


 


This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, that
neither this Agreement nor any of the rights hereunder may be assigned by any
of the parties hereto without the prior written consent of the other party.


 


Section 9.03           Construction.


 


It is the intent
of the parties hereto that every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any party.


 


Section 9.04           Headings.


 


The article and
section headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.


 


Section 9.05           Severability.


 


If any one or more
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.


 


Section 9.06           Governing
Law.


 


The laws of the
State of Delaware, without application of the conflicts of laws principles
thereof, shall govern the validity of this Agreement, the construction of its
terms, and the interpretation of the rights and duties arising hereunder.


 


24

















 


Section 9.07           Consent
to Jurisdiction.


 


Each party hereto
(a) irrevocably submits to the non-exclusive jurisdiction of any Delaware or
Missouri state court or Federal court sitting in Wilmington, Delaware or St.
Louis, Missouri in any action arising out of this Agreement, (b) agrees that
all claims in such action may be decided in such court, (c) waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum,
and (d) consents, to the fullest extent it may effectively do so, to the
service of process by mail in accordance with Section 9.01 hereof.  A final non-appealable judgment of any such
court shall be conclusive and may be enforced in other jurisdictions.  Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its right
to bring any action in any other court.


 


Section 9.08           Waiver
of Jury Trial.


 


EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHTS
TO TRIAL BY JURY AND ALL RIGHTS TO IMMUNITY BY SOVEREIGNTY OR OTHERWISE IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.


 


Section 9.09           Counterpart
Execution.


 


This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument and shall become a binding Agreement when one or more of the
counterparts have been signed by Seller and Purchaser and delivered to the
other party.


 


Section 9.10           Specific
Performance.


 


Each of the
parties acknowledges that money damages would not be a sufficient remedy for
any breach of this Agreement and that irreparable harm would result if this
Agreement were not specifically enforced. 
Therefore, the rights and obligations of the parties under this
Agreement shall be enforceable by a decree of specific performance issued by
any court of competent jurisdiction, and appropriate injunctive relief may be
applied for and granted in connection therewith. A party’s right to specific
performance shall be in addition to all other legal or equitable remedies
available to such party.


 


Section 9.11           No
Material Impairment.


 


No party hereto
shall take any action that could materially impair such party’s ability to
perform its duties or obligations under this Agreement.


 


Section 9.12           Entire
Agreement.


 


This Agreement
including the exhibits, schedules, other documents and instruments referred to
herein, together with the LLC Agreement, constitute the entire agreement among
the parties hereto and their respective Affiliates and contain all of the
agreements among such parties with respect to the subject matter hereof and
thereof.  This Agreement supersedes any
and all other agreements, either oral or written, between such parties with
respect to the subject matter hereof.


 


25

















 


Section 9.13           Waiver
of Compliance; Consents.


 


Any failure of a
party to comply with any obligation, covenant, agreement or condition herein
may be waived by the other party; provided, however, that any such waiver may
be made only by a written instrument signed by the party granting such waiver
and provided, further, that such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
9.13, with appropriate notice in accordance with Section 9.01 hereof.


 


Section 9.14           Third
Party Beneficiaries.


 


Each Member of Purchaser (other than Seller, Central
Soya or their transferees) shall be a third party beneficiary of this Agreement
and shall be entitled to the benefits of Purchaser set forth herein.  Except
as expressly provided herein, nothing in this Agreement is intended or shall be
construed to confer upon any Person, other than the parties and their
respective successors and permitted assigns, any rights, remedy or claim under
or by reason of this Agreement or any provision contained herein.


 


Section 9.15           Amendment
and Modification.


 


This Agreement may
be amended, modified or supplemented only by a written agreement of each of the
parties hereto.


 


Section 9.16           Schedules.


 


All Schedules
attached hereto are hereby incorporated herein and made a part hereof as if set
forth in full herein.


 


Section 9.17           Inconsistency
or Conflict.


 


In the event of
any inconsistency or conflict between any provision of this Agreement and any
provision of the LLC Agreement, the provision of the LLC Agreement shall
govern.


 


Section 9.18           Expenses,
Etc.


 


Except as
otherwise provided herein, whether or not the transactions contemplated by this
Agreement shall be consummated, all fees and expenses (including all fees of
counsel, actuaries and accountants) incurred by any party in connection with
the negotiation and execution of this Agreement shall be borne by such party.


 


Section 9.19           Further
Assurances.


 


From time to time,
at the request of any party hereto and without further consideration, the other
party, at its own expense, will execute and deliver such other documents,


 


26

















 


and take such other action, as such
party reasonably may request in order to consummate more effectively the
transactions contemplated by this Agreement or the LLC Agreement and to vest in
Purchaser good and marketable title to the Shares.


 


[SIGNATURES
ON FOLLOWING PAGE]


 


27

















 


IN
WITNESS WHEREOF, the parties have caused their duly
authorized representatives to execute this Agreement as of the day and year
first above written.


 


	
   

  	
  BUNGE LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BUNGE
  LIMITED

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  SOLAE HOLDINGS
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ SOLAE
  HOLDINGS LLC

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Signature Page to Share Purchase Agreement


 


28

















 


Schedule 1.01(a)


 


Liabilities


 


 


29

















 


Schedule 5.01(d)


 


Seller Filings; Violations


 


Filing with the Brazilian CVM regarding the Spin-Off


 


Filing with the Brazilian CVM regarding the Tender Offer


 


30

















 


Schedule 5.01(e)


 


Seller Actions


 


None.


 


31

















 


Schedule 5.01(f)


 


Certain Brazilian Assets


 


	
  LOCATION/ASSET

  	
   

  	
  COMMENTS

  
	
  Esteio, Brazil Facility

  	
   

  	
  Excluding fats & oils facilities

  



 


[JOE B TO PROVIDE]


 


32

















 


Schedule 5.01(g)


 


Seller’s Taxes


None.


 


33

















 


Schedule 5.01(j)


 


Intellectual Property


 


None.


 


34

















 


Schedule 5.01(m)


 


Seller’s Consents; Approvals


 


Consent of the Brazilian CVM regarding the Spin-Off


 


Consent of the Brazilian CVM regarding the Tender Offer 


 


35

















 


Schedule 5.02(c)


 


Purchaser’s Filings; Violations


 


Filing with the Brazilian CVM regarding the Tender Offer


 


36

















 


Schedule 5.02(f)


 


Purchaser Consents; Approvals


 


Consent of the Brazilian CVM regarding the Tender Offer


 


37