AMENDMENT NUMBER 1. to the STOCK PURCHASE AGREEMENT. among CERES GLOBAL AG CORP., WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P.,

Transcription

1 Execution Copy AMENDMENT NUMBER 1 to the STOCK PURCHASE AGREEMENT among CERES GLOBAL AG CORP., WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P., WHITEBOX MULTI-STRATEGY PARTNERS, L.P., F CUBED PARTNERS, L.P., and DRE PARTNERS, L.P. dated as of June 8, 2010

2 AMENDMENT NUMBER 1 TO THE STOCK PURCHASE AGREEMENT This Amendment Number 1 to the Stock Purchase Agreement (the Amendment ) is made and entered into as of June 8, 2010 among: (a) Ceres Global Ag Corp., a corporation incorporated in Ontario ( Buyer ); (b) Whitebox Credit Arbitrage Partners, L.P., a limited partnership organized under the laws of the British Virgin Islands ( Whitebox Credit Arbitrage Partners ); (c) Whitebox Multi-Strategy Partners, L.P., a limited partnership organized under the laws of the British Virgin Islands ( Whitebox Multi-Strategy Partners ); (d) F Cubed Partners, L.P., a limited partnership organized under the laws of the British Virgin Islands ( F Cubed ); and (e) DRE Partners, L.P., a limited partnership organized under the laws of the British Virgin Islands ( DRE Partners and, together with Whitebox Credit Arbitrage Partners, Whitebox Multi-Strategy Partners and F Cubed, the Sellers ). RECITALS A. Buyer and Sellers are parties to that certain Stock Purchase Agreement, dated as of April 26, 2010 (the Original Agreement ). B. Buyer and Sellers desire to amend the Original Agreement on the terms and conditions set forth herein. AGREEMENTS NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Defined Terms. Defined terms used in this Amendment have the same meaning as set forth in the Original Agreement, unless otherwise indicated. In addition to the terms defined in Article I of the Original Agreement, the following terms have the meanings indicated below: Buyer Common Shares means common shares, without nominal or par value, of Ceres Global Ag Corp.

3 Closing Shares means that number of Buyer Common Shares equal to (a) (i) US$26 million multiplied by (ii) the Canadian dollar daily spot rate as of 5:00 p.m. Eastern time on the day that is three (3) Business Days before the Closing Date (as quoted on the Bloomberg system), divided by (b) the Pre-Closing NAV, calculated in accordance with Section 3.5(a); provided, however, that in no event may the number of Closing Shares issued to the Sellers pursuant to this Agreement exceed 19.7% of the issued and outstanding Buyer Common Shares, including the Buyer Common Shares issuable upon exercise of the Warrants, as of the Closing Date (which number of Buyer Common Shares would be equal to 2,908,888 if the number of issued and outstanding Buyer Common Shares as of the Closing Date is equal to the number set forth in the second sentence of Section 5.5(a)). Cash Settlement Amount means an amount in US$, if any, equal to (a) US$26 million minus (b) (i) (A) the number of Closing Shares multiplied by (B) the Pre-Closing NAV, calculated in accordance with Section 3.5(a), divided by (ii) the Canadian dollar daily spot rate as of 5:00 p.m. Eastern time on the day that is three (3) Business Days before the Closing Date (as quoted on the Bloomberg system). For greater certainty, the definition of Buyer Common Shares as set out in Section 1.1 of the Original Agreement is deleted in its entirety and replaced with the definition for Buyer Common Shares set out above. ARTICLE II PURCHASE PRICE AND CLOSING 2.1 Purchase Price and Closing Payments. Section 3.1 of the Original Agreement is amended by deleting (a) and (b) in their entirety and substituting the following in lieu thereof: (a) Subject to the terms and conditions of this Agreement, Buyer will pay Sellers the Purchase Price described in this Article III. The aggregate purchase price for the Company Common Stock (the Purchase Price ) will be equal to: (i) US$48 million in cash (the Cash Purchase Price ), as adjusted by the adjustments described in Section 3.1(b), Section 3.2 and in Section 3.5; (ii) The Closing Shares; and (iii) Warrants to purchase up to 150,000 Buyer Common Shares, which warrants shall be substantially in the form of Exhibit C hereto (the Warrants ). The Purchase Price will be allocated among the Sellers on a pro rata basis, based on the proportion of the number of shares of Company Common Stock to be sold by each Seller to the total number of shares of Company Common Stock to be sold by all Sellers, with the allocation of the Cash Purchase Price, Closing Shares and Warrants among the Sellers being effected in accordance with the instructions provided by the Sellers to Buyer at least two Business Days before the Closing Date. (b) The amount of the Cash Purchase Price to be paid to Sellers at Closing will be US$48 million, increased by (i) (A) the Cash Settlement Amount, if any, and

4 (B) the amount by which Pre-Closing Net Equity is greater than the Net Equity Target, if any, and decreased by (ii) the amount by which the Net Equity Target is greater than Pre- Closing Net Equity, if any (collectively, the Closing Cash Payment ). 2.2 Pre-Closing NAV. Section 3.5 of the Original Agreement is amended by deleting (a) in its entirety and substituting the following in lieu thereof: (a) The net asset value per Buyer Common Share (the Net Asset Value ) will be determined by Buyer as of the close of business on the third (3 rd ) Business Day immediately before the Closing Date (the Pre-Closing NAV ) in accordance with the procedures used to calculate Net Asset Value of Buyer in the Ordinary Course of Business, as set forth in Section 5.11 of the Buyer Disclosure Schedule, consistently applied (the NAV Procedures ). Buyer will provide Sellers with a detailed calculation of the Pre-Closing NAV and access to the working papers and other information used by Buyer or Citigroup Fund Services Canada, Inc. to calculate Pre-Closing NAV. ARTICLE III MISCELLANEOUS 3.1 Conflicts. In the event of a conflict or inconsistency between the terms and provisions of this Amendment and the terms and provisions of the Original Agreement, the terms and provisions of this Amendment will govern. In all other respects, the Agreement, as amended and supplemented hereby, will govern. 3.2 Authority. Each party signing this Amendment hereby represents and warrants that: (a) it has the power and authority to execute, deliver and perform under this Amendment and (b) this Amendment has been duly executed and delivered by it and is binding and enforceable against it in accordance with its terms and conditions. 3.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota. 3.4 Counterparts. This Amendment may be executed in any number of counterparts (and by facsimile), each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile, PDF file, or other means of electronic transmission will be effective as delivery of a manually executed counterpart to this Amendment. 3.5 Effect. Except as specifically modified herein, all of the terms and conditions of the Original Agreement will remain in full force and effect. [Signature Pages Follow] fb.us

5 IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the parties hereto as of the date first written above. CERES GLOBAL AG CORP. By: (signed) Jason C. Gould Name: Jason C. Gould Title: Chief Financial Officer By: (signed) Tom P. Muir Name: Tom P. Muir Title: Chief Transaction Officer WHITEBOX CREDIT ARBITRAGE PARTNERS, L.P. By: Whitebox Credit Arbitrage Advisors, LLC, its WHITEBOX MULTI-STRATEGY PARTNERS, L.P. By: Whitebox Multi-Strategy Advisors, LLC, its [Signature Page to Amendment Number 1 to the Stock Purchase Agreement]

6 F CUBED PARTNERS, L.P. By: Whitebox Multi-Strategy Advisors, LLC, its DRE PARTNERS, L.P. By: Whitebox Credit Arbitrage Advisors, LLC, its [Signature Page to Amendment Number 1 to the Stock Purchase Agreement]