Shareholders' Agreement

Corporate Governance Shareholders' Agreement

SHAREHOLDERS' AGREEMENT OF MULTIPLAN EMPREENDIMENTOS IMOBILIÁRIOS S.A.

By this private instrument, MULTIPLAN PLANEJAMENTO, PARTICIPAÇÕES E ADMINISTRAÇÃO S.A., a corporation organized under the laws of the Federative Republic of Brazil, enrolled with CNPJ/MF under No. 2.330.522/0001-00, headquartered in the City of Rio de Janeiro, in the State of Rio de Janeiro, at Avenida das Américas, No. 4.200, bloco 2, sala 501, duplex, parte ("MTP Planejamento"), herein represented pursuant its bylaws; 1700480 ONTARIO INC., a corporation organized under the laws of Ontario, headquartered in the City of Toronto, Canada, at 20 Queen Street West, (“CFBrazil”), herein represented pursuant its Articles of Incorporation; MTP Planejamento and FBrazil are collectively denominated "Shareholders", and, separately, a "Shareholder"; in the capacity of consenting and ntervening parties:

JOSÉ ISAAC PERES, razilian citizen, married, economist, bearer of identification card no. 1.743.139, issued by IFP/RJ, enrolled with CPF/MF under No. 001.778.577-49, resident and domiciled in the City of Rio de Janeiro, in the State of Rio de Janeiro, whose business address is at Av. das Américas, No. 4.200, Bloco 2, sala 501 (duplex, parte) ("JIP"); and

MULTIPLAN EMPREENDIMENTOS IMOBILIÁRIOS S.A., a corporation established and operating under the laws of the Federative Republic of Brazil, enrolled with CNPJ/MF under No. 07.816.890/0001-53, headquartered in the City of Rio de Janeiro, in the State of Rio de Janeiro, at Avenida das Américas, No. 4.200, bloco 2, sala 501, duplex, parte ("Company");

WHEREAS: 

  1. On June 22, 2006, the MTP Planejamento and Bertolino Participações Ltda. ("Bertolino"), among others, executed a Shareholders Agreement of the Company (the "2006 Shareholders Agreement"), with the intention to regulate their mutual rights and obligations, as shareholders of the Company; 2

  2. On May 29, 2007, Bertolino was merged into the Company so that CFBrazil, as the sole shareholder of Bertolino, became a direct shareholder of the Company;

  3. The Company's capital, fully subscribed and paid-in, is R$ 264.419.053,00 (two hundred, sixty four million, four hundred, nineteen thousand and fifty three reais), divided into 120,266,332 (one hundred and twenty million, two hundred and sixty six thousand, three hundred and thirty two) registered shares with no par value, which are divided into 92,267,820 (ninety two million, two hundred and sixty seven thousand, eight hundred and twenty) common shares and 27,998,512 (twenty seven million, nine hundred and ninety eight thousand, five hundred and twelve) preferred shares (the "Preferred Shares"), and all of the Preferred Shares are owned by CFBrazil;

  4. The bylaws of the Company provide that the Preferred Shares may be converted into common shares of the Company at the sole discretion of CFBrazil;

  5. The Company is in the course of a procedure in order to allow it implement an initial public offering of shares of the Company on Level 2 of BOVESPA (the "IPO");

  6. It is the current intention of the parties that CFBrazil will convert the Preferred Shares into common shares of the Company at such time as CFBrazil has determined, in its sole discretion, that it is possible to do so without violating legal and regulatory restrictions applicable to CFBrazil and that, thereafter, the parties here to will use their best efforts to cause the Company to be listed on the Novo Mercado;

  7. The Company is the Controlling Shareholder of (a) CAA Corretagem Imobiliária Ltda., (b) CAA Corretagem e Consultoria Publicitária Ltda., (c) Renasce – Rede Nacional de Shopping Centers Ltda., (d) Multiplan Administradora de Shopping Centers Ltda., (e) MPH Desenvolvimento Imobiliário Ltda., and of any and all other subsidiaries to be formed as agreed by the Shareholders, as well, approximately 98% (ninety eight percent) of the residential project named "Peninsula Royal Green" (such companies, jointly, "Subsidiaries");

  8. The Company shall be the exclusive vehicle for the implementation of the investments of the Shareholders and of JIP into the Permitted Business, in accordance with the terms and conditions of this Agreement and the Company's Bylaws;

The Shareholders wish to fully terminate the 2006 Shareholders Agreement, and substitute the present agreement for it, all in accordance with the terms and conditions established below;

I. DEFINITIONS

1.1. Notwithstanding the other specific definitions contained herein, the terms in capital letters, both in singular and plural, shall have the meanings attributed to them in Schedule I hereof, considered as an integral part for every purpose of law.

II. SHARES BOUND BY THIS AGREEMENT

2.1. This Agreement is binding upon the Bound Shares (as hereinafter defined). For purposes of this Agreement, "Bound Shares" means: 

  1. prior to completion of the IPO, all of the shares of the Company held by the Shareholders; and 
  2. (ii) following completion of the IPO, (A) in the case of MTP Planejamento, that number of common shares of the Company as represents 27,389 % of the issued and outstanding shares of the Company as at the closing of the IPO (the "MTP Bound Shares") and (B) in the case of CFBrazil, that number of common shares of the Company as represents 23,611 % of the issued and outstanding shares of the Company as at closing of the IPO (the "CF Bound Shares").

Following completion of the IPO, any shares of the Company held by either Shareholder that are not Bound Shares shall not be bound by this Agreement and, for greater certainty, the Shareholders shall be free to sell, transfer or otherwise dispose of any shares of the Company that are not Bound Shares without any restriction except as may be imposed under applicable law.

2.2. Where, solely as a result of a share split, exercise of options, conversion of securities or reverse split of shares (or other similar transaction) that affects all of the shares of the Company equally, the total number of outstanding shares of the Company is increased or decreased, then the number of MTP Bound Shares and CF Bound Shares shall be increased or decreased, as the case may be, proportionately so that such shares continue to represent the same percentages of the outstanding shares of the Company as are described in Section 2.1. By way of example, if the shares of the Company are split on a two-for-one basis, so that each Shareholder holds two shares of the Company for every share in the Company held prior to the split, then the number of MTP Bound Shares and CF Bound Shares shall be doubled so that the MTP Bound Shares and the CF Bound Shares represent the same percentage of the total issued and outstanding shares of the Company following the split as was the case prior to the split.

2.3 Notwithstanding the provisions of Sections 2.1 and 2.2, MTP Planejamento may, at its sole discretion, on at least 30 days prior written notice to CFBrazil, reduce the number of MTP Bound Shares and the number of CF Bound Shares proportionately so that the Bound Shares in aggregate represent 40% (forty per cent) of the issued and outstanding shares of the Company as at the date of such determination. Thereafter, only the shares that 4 constitute MTP Bound Shares or CF Bound Shares after such reduction shall constitute Bound Shares for purposes of this Agreement, and the Shareholders shall be free to sell, transfer or otherwise dispose of the shares that no longer constitute Bound Shares as a result of such reduction without any restriction except as may be imposed under applicable law.

2.4. Immediately after the IPO or after any adjustment to the number of Bound Shares pursuant to either Section 2.2 or Section 2.3, the Company shall certify, with copy to the Shareholders and the depositary institution of the shares of the Company, the number of MTP Bound Shares and the number of CF Bound Shares.

2.5 Notwithstanding any other provision of this Agreement, if CFBrazil notifies MTP Planejamento that, in order to be able to convert Preferred Shares into common shares of the Company in compliance with legal and regulatory restrictions applicable to CFBrazil, it intends to sell common shares of the Company and it does not own a sufficient number of common shares of the Company that are not CF Bound Shares to effect such sale, then: 

  1. CFBrazil shall be permitted to sell such number of the CF Bound Shares as necessary to enable it to be able to so convert such Preferred Shares into common shares of the Company and such number of CF Bound Shares shall cease to be CF Bound Shares for all purposes of this Agreement and the sale of such shares shall not be subject to this Agreement, including for greater certainty Clause VII; and 

  2. the number of common shares received on the conversion of Preferred Shares equal to the number of CF Bound Shares so sold (but not any other common shares of the Company received on such conversion) shall constitute CF Bound Shares for all purposes of this Agreement. If pursuant to this Section 2.5 CFBrazil is selling common shares that were previously CF Bound Shares, MTP Planejamento shall immediately take and shall cause its representatives in the administration of the Company to immediately take, all steps necessary to permit the transfer of such shares, including making such changes to the Share Registration Book of the Company as are necessary in connection therewith.

III. MAIN PRINCIPLES

3.1. Principles. 

The Shareholders hereby set forth the following basic principles that shall govern the resolutions and the exercise of voting rights by the Shareholders at the Shareholders Meetings, as well as their representatives at meetings of the Board of Directors and Board of Officers.

  1. The Company shall be managed by experienced and skilled professionals that have the qualifications required for the offices that they occupy.

  2. The Company's strategic decisions in the financial and commercial areas, among others, shall always be made in the best interest of the Company, with a view to assure that the Shareholders have the best return on their investments, and the maximization and the distribution of profits to the shareholders.5

  3. The management of the Company when performing its activities shall always pursue the highest levels of profitability, efficiency, productivity and competitiveness.

3.2. Voting Commitment. 

The Shareholders undertake to exercise their right to vote at Shareholders Meetings and to instruct their representatives on the Board of Directors and Board of Officers to exercise their voting rights in accordance with the basic principles set out above and with the other provisions in this Agreement. 

3.3. Direct Acquisition of Shares. 

The Shareholders agree that any acquisition of shares or quotas of any of the Subsidiaries currently held by Third Parties shall be solely carried out through the Company or any of its Affiliates or Subsidiaries. Except if authorized by the other Shareholder, the acquisition by any Shareholder (directly or through any of its Affiliates or Related Parties) of shares of the Company and/or any of the Subsidiaries shall be prohibited; provided that this restriction shall not extend to 

  1. an acquisition of shares of the Company pursuant to a transaction referenced in Section 2.2 where a Shareholder receives only its proportionate share of any shares issued under such a transaction or 

  2. an acquisition of shares of the Company made by any fund or other Person in which CFBrazil, its controlling shareholders, Related Parties or Affiliates, is an investor but which is managed by another Person which is not an Affiliate of CFBrazil, provided that CFBrazil does not have any control over

    • the decision by any such fund or other Person to acquire such shares or

    • the exercise by any such fund or other Person of voting rights attached to such shares

IV. SHAREHOLDERS MEETINGS

4.1. Shareholders Meetings. 

Shareholders Meetings shall be held annually and whenever the business of the Company so requires, as set forth in the Brazilian Corporations Law. The applicable legal provisions being duly observed, the shareholders of the Company must be called to attend Shareholders Meetings through call notices to be delivered at least 15 (fifteen) days in advance of the date scheduled for the holding of the Shareholders Meeting or such earlier date as may be required by law, containing information on the place, date and time of the Shareholders Meeting and the agenda, as well as any support documentation. 

4.2. Shareholders Major Decisions.

Neither Shareholder, nor its representatives on the Board of Directors or otherwise involved in the administration of the Company, shall present any of the following matters ("Shareholders Major Decisions") to the other shareholders of the Company for approval at a Shareholders Meeting until they have first been approved by both Shareholders in accordance with Clause VI below:

  1. any decision to effect merger, including a merger of shares (incorporação de ações), spin-off, split, change of corporate form or any other form of restructuring or reorganization of the Company or its Subsidiaries, or the iquidation of the Company or its Subsidiaries;6

  2. any decision to effect capital increases through the issuance of new shares, warrants (bônus de subscrição), options or other securities and financial instruments, except pursuant to the IPO, of the Company or any of the Subsidiaries, and the new shares issued shall have their issuance price determined by the Shareholders with the assistance of an independent valuator jointly appointed by the Shareholders;

  3. any changes in the bylaws of the Company (the "Bylaws") or any of the Subsidiaries, in case these changes adversely affect, in fact or potentially, the rights granted to either Shareholder; without limiting the generality of the foregoing, any change to the Bylaws that is inconsistent with the terms of, or affects in any manner the rights of either Shareholder under, this Agreement shall be deemed to adversely affect the rights granted to the Shareholders; and'

  4. any changes in the dividend policy specified in the Bylaws; provided that MTP Planejamento may, in its sole discretion, authorize the payment of dividends by the Company in excess of the minimum dividend of 25% (twenty-five per cent) of the adjusted net profit that is otherwise required pursuant to the Bylaws to a maximum of 50% (fifty per cent) of such profit.

4.3 Conversion of Preferred Shares.

Notwithstanding any other provision of this Agreement (including, without limitation, Clauses V and VI), the decision to convert all or any part of the Preferred Shares into common shares of the Company, at any time and from time to time, shall be made by CFBrazil, in its sole discretion, upon written notice to the Company and MTP Planejamento and such decision shall be binding on all the other parties hereto and shall not require the consent or approval of any such parties. If CFBrazil makes such decision, the Shareholders shall immediately take, and shall cause their representatives in the administration of the Company to immediately take, all steps necessary to effect, and to cause the Company to effect, such conversion of the Preferred Shares immediately after such decision is made. When all of the Preferred Shares have been converted into common shares of the Company, the parties hereto shall immediately use their best efforts to cause the Company to be listed on the Novo Mercado.

 V. MANAGEMENT

5.1. The Company shall be managed by its Board of Directors and its Board of Officers as prescribed by this Agreement and the Bylaws. 

5.2. Board of Directors. 

The Shareholders agree to exercise, at all Shareholders Meetings, the voting rights attaching to all of the shares in the Company then held by them, including their Bound Shares, in order to assure the election of the members of Board of Directors of the Company in accordance with the following provisions:7

5.2.1. Subject to Section 

5.2.3., MTP Planejamento shall, in its sole discretion, appoint a majority of the Directors of the Company and CFBrazil shall, in its sole discretion, appoint the remaining Directors of the company who are not required to be independent Director(s).

5.2.1.1. Except where the number of Directors that may be jointly elected by the Shareholders is limited in the circumstances described in Section 

5.2.3, MTP Planejamento shall appoint the independent Director(s), subject to the approval of CFBrazil, which approval shall only be denied if the appointed Director(s) does not possess the qualifications required to satisfy the generally accepted standards of good corporate governance in Brazil.

5.2.2. Following execution of this Agreement, the Board of Directors of the Company shall be composed of 7 (seven) Directors as follows:

  1. José Isaac Peres (appointed by MTP Planejamento)
  2. Eduardo Kaminitz Peres (appointed by MTP Planejamento)
  3. Manoel Joaquim Rodrigues Mendes (appointed by MTP Planejamento)
  4. Edson de Godoy Bueno (appointed by MTP Planejamento)
  5. Leonard Peter Sharpe (appointed by CFBrazil)
  6. Andrea Mary Stephen (appointed by CFBrazil)
  7. José Carlos de Moraes Sarmento Barata (Independent Board Member)

5.2.3. If the number of Directors of the Company that may be jointly elected by the Shareholders is limited under the terms of article 141 of the Brazilian Corporations Law (or similar legal provision) with the balance of the Directors of the Company appointed and elected by other shareholders of the Company, then 

  1. the Shareholders shall exercise the voting rights attached to all of the shares of the Company then held by them, including the Bound Shares, in order to guarantee the election of the greatest possible number of Directors; and 
  2. for such election, MTP Planejamento shall appoint a majority of the Directors of the Company to be jointly elected by the Shareholders, and CFBrazil shall appoint the balance, if any, of the remaining Directors of the Company that may be so jointly elected by the Shareholders.

5.2.4. At any time, a Shareholder may determine the removal of any Director appointed by such Shareholder in accordance with this Clause V, and appoint another person to replace the removed Director. The other Shareholder undertakes to exercise its voting rights at the applicable Shareholders Meeting to effect the removal and replacement of such Director as indicated by the Shareholder making such determination to remove and replace the Director. 

5.2.5. In case of absence, vacancy or impediment of any Director during the term for which such Director was appointed, his or her substitute shall be appointed by the Shareholder which has appointed such Director in accordance with the provisions of this Clause V.8

5.2.6. The Shareholders agree to use their best efforts to ensure that the Directors appointed by them will be present at all meetings of the Board of Directors and will exercise their voting rights in accordance with the principles and rules of this Agreement.

5.2.7. The Shareholders shall assign 1 (one) of their shares to each Director they have elected under the terms of this Clause V. The shares assigned to the Directors shall be considered, for all purposes and effects of this Agreement, owned by the Shareholder who has assigned said Shares. Each Shareholder agrees to obtain from each elected Director sufficient powers to exercise at the Shareholders Meetings the voting rights associated with the shares assigned to each such Director, as well as to transfer back these shares in case the Director, for any reason, ceases to be a Director.

5.2.8. The Board of Directors shall meet at least once every three (3) months. If any Director wishes to have any additional meetings such Director may require such meetings to be held by giving, in each case, notice of the meeting in accordance with the provisions below and the meeting shall be held in accordance with such notice and the provisions below. 

5.2.8.1. No resolution with respect to any matter may be put to any meeting of the Board of Directors unless the notice of the meeting contains reasonable detail of the matter. Meetings of the Board of Directors will be held in the City of Rio de Janeiro, Brazil or, if the Board of Directors so determines, at any other place within or outside Brazil. 

5.2.8.2. Directors may participate in any meetings of the Board of Directors by means of telephone, video conference or other communication facilities which permit all persons participating in the meeting to hear each other, and Directors participating in such a meeting by such means are deemed for all purposes of this Agreement to be present at the meeting. 

5.2.8.3. The expenses incurred by the Directors to attend the meetings, including but not limited to air fare, lodging, meals and other related expenses, shall be borne by the Company.

5.2.9. For the regular quarterly meetings, notice of the time and place of each such meeting (including an agenda and relevant background materials) shall be given by the chairman of the Board of Directors to each Director not less than 8 (eight) days prior to the day such meeting is to be held or such other date as may be required by law. Notice of the time and place of any meeting that is not a regular quarterly meeting (including an agenda and relevant background materials) shall be given by the Director requesting such meeting to all other Directors not less than 8 (eight) days prior to the date such meeting is to be held, except in the case of an emergency when such notice shall be given in the manner provided herein to each Director not 9 less than 48 (forty eight) hours prior to the date and time the meeting is supposed to occur. 

5.2.9.1. Notwithstanding the foregoing, no notice of a meeting shall be necessary if at least one appointee of each Shareholder is present at the meeting.

5.2.10. A Meeting of the Board of Directors shall only be installed, on first call, with the presence of at least 2 (two) directors, with 1 (one) of them being an appointee of MTP Planejamento and the other being an appointee of CF Brazil, and, on second call, with any number of Directors. In case of absence of any Director from any Board of Directors meeting, such Director may be represented at such meeting by another Director who has been appointed by the same Shareholder, as designated by him or her, by means of a written delegation.  

5.2.11.Except as provided for in Clause 5.2.12 below, the resolutions of the Board of Directors shall be taken by majority vote of the members of the Board of Directors. Each Director shall be entitled to one vote. 5.2.12.The following matters ("Directors Major Decisions") shall not be presented to the Board of Directors for approval until they have first been agreed to by both Shareholders in accordance with Clause VI below:

  1. the proposed Annual Business Plan, including the capital budget and the operational budget, or subsequent changes to any such budget that exceed, in aggregate, 15% (fifteen per cent) of such budget, as approved;

  2. any decision by the Company, or any of its Subsidiaries, to make an investment, including acquisition of any assets or the making of any other investment (including without limitation any new real estate project or any renovation of any existing property) ("New Investment") not expressly provided for in the Annual Business Plan, which, individually considered, exceeds the Threshold Amount;

  3. any decision by the Company, or any of its Subsidiaries, to obtain, assume, renew or otherwise incur any new financing or indebtedness (including any financing done by way of a lease transaction) or the granting of any guarantee or indemnity in respect of any financing or indebtedness ("New Indebtedness"), not expressly provided in the Annual Business Plan or in any approved New Investment, exceeding either of the following: (a) the Threshold Amount; or (b) together with all other indebtedness of the Company and its Subsidiaries at such time, 40% (forty percent) of the then current shareholders equity of the Company;10

  4. any decision to sell or otherwise dispose of (including by way of a leasing transaction) any assets of the Company or its Subsidiaries having a value in excess of the Threshold Amount;

  5. approval of any transactions involving the Company and any of its Subsidiaries with any of the Shareholders, Directors, Officers, and/or executives of the Company or its Subsidiaries, their related spouses or relatives, up to the second degree, or an Affiliate of any of them including without limitation any non-competition provisions in favor of executives;

  6. engagement of third-party advisory services or experts by the Company or its Subsidiaries, where the estimated fees and expenses of any nature in the aggregate in a given fiscal year are not provided by the Annual Business Plan or New Investment that has been approved by the Board of Directors and will be in excess of 10% (ten percent) of the Threshold Amount;

  7. settlements resulting from lawsuits involving any of the Company or any of its Subsidiaries exceeding 10% (ten percent) of the Threshold Amount; 

  8. the structure and principal aspects of all incentive plans for executives, and any subsequent revisions and replacements thereof; 

  9. any decision of the Company or the Subsidiaries to engage, directly or indirectly, in any business or activity other than a Permitted Business;

  10. removal or replacement of independent auditors and, in the event the Board of Directors does not come to an agreement as regards the new independent auditors, these independent auditors shall be selected by the Directors appointed by MTP Planejamento from a list prepared by the Directors appointed by CFBrazil, listing 4 (four) independent auditors internationally recognized and duly authorized to perform these activities in Brazil; and

  11. the exercise of voting rights by the Company in any of its Subsidiaries involving any matter which is considered a Shareholders Major Decision or Directors Major Decision under this Agreement.

5.3. Board of Officers. 

The members of the Board of Officers shall be elected by the majority of the votes of the Directors present at the meeting called for said purposes, as set forth in the Bylaws.

5.4. Chief Executive Officer of the Company (CEO).

The MTP Planejamento shall have the right to appoint the Chief Executive Officer of the Company (CEO), who shall be elected by the Board of Directors.11 

 VI. MEETINGS BETWEEN SHAREHOLDERS

6.1. Mutual Agreement Required Regarding Major Decisions. 

Notwithstanding any other provision of this Agreement, the Shareholders shall not, and shall ensure that their representatives in the administration of the Company shall not and that the Company shall not, call a hareholders Meeting, a meeting of the Board of Directors or any other meeting involving the Company or any of the Subsidiaries (any such Shareholders Meeting, meeting of the Board of Directors or other meeting involving the Company or any of the Subsidiaries being a "Company Meeting") at which will be considered a Shareholders Major Decision or Directors Major Decision unless and until the matter has first been approved by both Shareholders.

6.2 Previous Meetings. 

Either Shareholder may call a meeting of the Shareholders (a "Previous Meeting"), on not less that 7 (seven) Business Days prior written notice to the other Shareholder containing the information set forth in Section 

6.2.1. in order to 

  1. consider whether to approve a Shareholder Major Decision or a Directors Major Decision so that a Company Meeting may be called at which such matter would be presented to the shareholders of the Company or the Board of Directors, as the case may be, or 

  2. review the agenda for any Company Meeting (including a Company Meeting called by a person that is not a Shareholder or a representative of a Shareholder) and determine the manner in which the Shareholders or their representatives in the administration of MTE, as the case may be, shall vote in respect of the matters to be considered at such Company Meeting. 

The decision (a "Binding Decision") taken at a Previous Meeting shall be binding on both Shareholders and each Shareholder shall ensure that it votes all of its shares in the Company then held, including its Bound Shares, in accordance with the Binding Decision and that its representatives on the Board of Directors vote strictly in accordance with the Binding Decision. For all purposes of this Agreement, a failure of the Shareholders to approve a Shareholder Major Decision or a Directors Major Decision at a Previous Meeting shall be deemed to be a decision not to approve the matter, which decision is a Binding Decision.

6.2.1. Except as otherwise expressly provided for in this Agreement, a Binding Decision shall be taken within 7 (seven) Business Days following receipt by the Shareholders of a detailed description of the matter to be considered, together with all supporting documentation reasonably required to make a decision concerning such matter. In case the information received by the Shareholders is not considered satisfactory, then the non-satisfied Shareholder shall request, in writing, within 3 (three) Business Days following receipt of such information, the information still required (“Supplementary Information”), and upon receipt of the Supplementary Information, a Binding Decision shall be taken within a new period of 7 (seven) Business Days from the date of receipt of the Supplementary Information.

6.2.2. For greater certainty, a Previous Meeting will not be installed unless at least one representative of each Shareholder is present at the meeting.12

6.2.3. The representatives of the Shareholders may participate in any Previous Meeting by phone, video conference or other means of communication that allows all the participants of the Previous Meeting to hear themselves, being that the representatives of the Shareholders who participate on the referred to Previous Meeting by any of such means shall be considered, by all means of this Agreement, present at the meeting.

6.2.4. The Binding Decisions taken in a Previous Meeting shall be duly certified by the representatives of the Shareholders and shall be filed in the Company and/or Subsidiary, for all means of the law.

6.2.5. Exclusively with regard to the matters submitted to a Company Meeting that are not Shareholder Major Decisions or Directors Major Decisions, MTP Planejamento shall decide the contents of the votes to be cast by the Shareholders and their representatives. On such matters, CFBrazil and its representatives shall follow the content of the vote determined by MTP Planejamento, which shall be deemed, for the purposes of this Agreement, a Binding Decision, and shall be filed at the Company and/or Subsidiary for all purposes of the law, without being required a Previous Meeting. 

6.3. Voidance of Contrary Votes. 

Any Shareholder, its Affiliates, Related Parties and/or its representatives in the administration of the Company and in any of the Subsidiaries (collectively, "Interested Persons") may request the President of the Company Meeting to declare void any vote that is contrary to, or inconsistent with, any Binding Decision, under the terms of article 118 of the Brazilian Corporations Law, and the relevant President shall have a legal duty to promptly discard a vote made in violation of this Agreement.

6.4. Absence or Abstention. 

Under terms of paragraph 9 of article 118 of the Brazilian Corporations Law, any failure by an Interested Person to attend or vote at a Company Meeting or the voidance of such Interested Person's vote at any such meeting under Section 6.3 above, shall allow the affected Shareholder the right to vote with the total amount of votes pertaining to the Interested Person that is absent, fails to vote or has its votes declared void, as the case may be, in order to support any resolution taken in respect of any Binding Decision. 

VII. ASSIGNMENT AND TRANSFER OF THE BOUND SHARES 

7.1. Restricted Transfers.

No Shareholder may sell, transfer, assign, convey or otherwise dispose of (any such action being a "Transfer") its Bound Shares except in compliance with the provisions of this Clause VII. It is hereby agreed that a Transfer of Bound Shares by any Shareholder shall only be permitted if the transferee acquires all, but not less than all, of the Bound Shares owned by such Shareholder, any partial transfer of Bound Shares being expressly forbidden.

7.2. Right of First Opportunity.

If any Shareholder (the "Offering Shareholder") desires to Transfer all (but not less than all) of its Bound Shares (the "Offered Shares"), in any way whatsoever, except pursuant to Section 7.5 hereof, the Offering Shareholder shall, before soliciting or dealing with any proposal or offer from Third Parties in this regard, notify the other Shareholder (the "Offered Shareholder") in writing, stating its intention to Transfer its Bound Shares ("Offer Notice"), as well as the expected price per share of the Offered Shares, the payment conditions and any other conditions of the proposed Transfer ("Offering Terms").

7.2.1. During the period of 90 (ninety) days counted from the receipt of the Offer Notice by the Offered Shareholder, the Offering Shareholder and the Offered Shareholder shall negotiate the Offering Terms, provided that prior to 3:00pm (Rio de Janeiro time) on the first Business Day immediately subsequent to the expiry of such period, (the "RFO Acceptance Deadline"), the Offered Shareholder shall notify in writing the Offering Shareholder whether or not it will exercise its right to acquire all (but not less than all) of the Offered Shares, in accordance with the Offering Terms. 

7.2.2. If before the RFO Acceptance Deadline the Offered Shareholder exercises its right to acquire all (but not less than all) of the Offered Shares in accordance with Section 7.2.1, such shares shall be acquired in accordance with the Offering Terms and transferred to the Offered Shareholder on the 60th (sixtieth) day after the date of the receipt by the Offering Shareholder of the notice from the Offered Shareholder of its exercise of its right to acquire the Offered Shares. The Offered Shareholder shall be entitled to direct the Offered Shares, or a portion thereof, be transferred to a Person designated by it.

7.2.3. In case the Offered Shareholder decides not to acquire the totality of the Offered Shares under the terms above or simply fails to notify the Offering Shareholder prior to the expiry of the RFO Acceptance Deadline, the Offering Shareholder shall be free to negotiate with any third party interested in acquiring such Offered Shares ("Interested Third Party"), always in compliance with the provisions of Section 7.3 below. 

 

7.3. Right of First Refusal.

Once the Offering Shareholder has encountered an Interested Third Party and has agreed on the terms and conditions for the sale of the Offered Shares to such Interested Third Party ("New Terms"), the Offering Shareholder shall, before concluding such transaction, notify again the Offered Shareholder in writing, informing the Offered Shareholder of the New Terms, as well as the identity of the Interested Third Party, which notice shall contain a copy of the offer received from the Interested Third Party and an offer to sell the Offered Shares to the Offered Shareholder in accordance with the New Terms (the "RFR Sale Offer"). 

7.3.1. The Offered Shareholder, not later than 2:00p.m. on the 30th day after receipt of the RFR Sale Offer (the "RFR Offer Acceptance Deadline"), may deliver a 14written notice to the Offering Shareholder (the "RFR Acceptance Notice") accepting the RFR Sale Offer.

7.3.2. If, on or before the RFR Offer Acceptance Deadline, the Offered Shareholder, in accordance with Section 7.3.1, elects to accept the RFR Sale Offer, the Offering Shareholder shall sell to the Offered Shareholder and the Offered Shareholder shall purchase from the Offering Shareholder such Offered Shares in accordance with the terms and conditions of the RFR Sale Offer, provided that the closing of the sale of the Offered Shares to the Offered Shareholder shall occur on the date that is the earlier of 

  1. the closing date provided for in the RFR Sale Offer and
  2. the 60th (sixtieth) day after the Offer Acceptance Deadline. The Offered Shareholder shall be entitled to direct the Offered Shares to be acquired pursuant to the RFR Sale Offer, or a portion thereof, be transferred to a Person designated by it.

7.3.3. If, on or before the RFR Offer Acceptance Deadline, the Offered Shareholder fails to deliver a RFR Acceptance Notice to the Offering Shareholder or sends a notice to the Offering Shareholder informing of its intention not to buy the Offered Shares, the Offering Shareholder shall have the right to Transfer the Offered Shares to the Interested Third Party in accordance with the New Terms within the 90-day period following the RFR Offer Acceptance Deadline. If the Transfer is not completed under the New Terms within such 90-day period, the Offering Shareholder shall not proceed with any Transfer of the Offered Shares to the Interested Third Party without complying again with the procedures of Sections 7.2 and 7.3 hereof. 

7.3.4.The provisions of this Section 7.3 shall be applied to any offers received and related to the Bound Shares by any of the Shareholders from any Interested Third Party, including any unsolicited offers. 

7.4. Mandatory Adhesion.

Any permitted Transfer of Bound Shares to a Third Party shall only be considered valid and enforceable if on or before the completion of such transaction the assignee undertakes, in writing, to the other Shareholder, to replace the transferor as a party to this Agreement and to abide by the terms and conditions of this Agreement (including, without limitation, the provisions of Sections 7.2 and 7.3 hereof in respect of any subsequent Transfer of its Bound Shares), as if it has been an original party hereto, and being fully entitled to the same rights and obligations of the assignor hereunder.

7.5.Permitted Transfers.

Subject to the provisions below, any Shareholder shall be entitled to Transfer all (but not less than all) of its Bound Shares without the consent (but with prior written notice to the other Shareholders), at any time and from time to time, to any Person that, at the time of the Transfer, is an Affiliate or Related Party of such Shareholder, provided that, on or before the completion of the Transfer,

  1. the transferee undertakes in writing to the other Shareholders to abide by the terms and conditions of this Agreement as set forth in Section 7.4;
  2. the transferor undertakes in writing to jointly guarantee to the other Shareholders the performance by the transferee of all of its rights and obligations under this Agreement; and
  3.  the transferor undertakes to repurchase or 15 repossess the Bound Shares from the transferee if the transferee ceases to be an Affiliate or Related Party of the Shareholder, or is terminated, liquidated, wound up or ceases to exist. The provisions in Sections 7.2 and 7.3 hereof do not apply to a Transfer under this Section 7.5. 

For purposes of this Section 7.5, JIP, his wife and relatives, up to the second degree, shall be deemed to be Related Parties of MTP Planejamento.

7.6. Encumbrance of Bound Shares. 

A Shareholder shall not create any liens, encumbrances, pledges, usufructs or rights (a "Lien") on its Bound Shares, or any portion thereof, without the prior written consent of the other Shareholder, except pursuant to a financing of the Company or its Subsidiaries approved in accordance with this Agreement. If approved, the creation of any Lien on the Bound Shares shall only be considered valid and enforceable if the beneficiary of such Lien, prior to its effectiveness, agrees and undertakes, in writing, to comply with the terms and conditions set forth in this Agreement.

7.7. Indirect Transfers.

Any indirect transfers of Bound Shares shall be subject to the restrictions set forth herein, including any Transfer of an equity interest in any Shareholders, or other similar transactions, including spin-off, merger, corporate capitalization, amalgamation, winding up, arrangement or other corporate eorganization with the objective of, directly or indirectly, avoiding compliance with the provisions of this Clause VII by any Shareholder. The provisions of this Section 7.7 shall not apply in case of changes of Control of MTP Planejamento as a result of JIP's death, provided that the Control remains with JIP's family.

7.8. Prohibited Registration.

Any transfer of Bound Shares or the creation of any Liens on the Bound Shares in breach of the provisions of this Agreement shall not be considered valid and shall not be registered by the Company in its corporate books.

 VIII. ACCESS TO INFORMATION

8.1. Informal meetings.

The Shareholders shall meet, at least on a quarterly basis, on the dates to be jointly agreed upon for discussion and oversight of the activities of the Company and its Subsidiaries.

8.2. Access to Information. 

Each Shareholder and its representatives, advisors and auditors shall have access to all books and records of, and information concerning, the Company and (to the extent the Company has the same in its possession or Control, or the Company or the Shareholders are otherwise able, directly or indirectly, to cause such access to be provided) the Subsidiaries, including, without limitation, all financial and other reports received by each such corporation in respect of its business. Such access shall be provided upon request of a Shareholder, during normal business hours at the principal office of the Company or the Subsidiary, as the case may be, or such other location as is acceptable to such Shareholder, acting reasonably. Upon the request of a Shareholder made to the Company, representatives, advisors and auditors of such Shareholder shall be provided with the opportunity to meet, during normal business hours, with the auditor and other persons who are familiar with the affairs of the Company and the Subsidiaries, all as 16 requested by such Shareholder. A Shareholder shall bear its own costs for the access, and any audit or review, referred to in this Section, including any reasonable costs associated with making photocopies of documents. 

 IX. ANNUAL BUSINESS PLAN

9.1. Preparation and Approval of the Annual Business Plans. 

The Shareholders shall cause the Executive Officers of the Company to prepare and submit to the Board of Directors for approval, at least 1 (one) calendar month prior to the end of each Fiscal Year, a proposed Annual Business Plan for the next Fiscal Year for the Company and each of the Subsidiaries, which plan shall include a proposed operating budget and capital budget for such companies for the relevant Fiscal Year, be in a form substantially consistent with the 2007 Annual Business Plan approved by the Shareholders (or their predecessors) and contain all supporting documentation reasonably required to make a decision concerning the proposed plan. The Shareholders shall also cause the Executive Officers of the Company to make such changes to such proposed Annual Business Plan as are determined by the Board of Directors. Provided that the Shareholders have received the proposed Annual Business Plan in the form described above and within the time period referenced above, the Shareholders shall attempt, diligently and in good faith, to reach a decision concerning the proposed Annual Business Plan for the next Fiscal Year by the end of the then current Fiscal Year.

9.2. Compliance with Annual Business Plan. 

The Shareholders shall cause the Company to comply with the Annual Business Plan and, to the extent of their influence, direct or indirect, shall cause the Subsidiaries to comply with their respective Annual Business Plan. Without limiting the generality of the foregoing, the Company shall not take any action, make any material expenditure, or incur any obligation unless such action, expenditure or obligation is consistent with the provisions of the then current Annual Business Plan or has otherwise been approved by the Board of Directors. Also, the Shareholders shall, to the extent of their influence, direct or indirect, cause the Subsidiaries not to take any action, make any expenditure or incur any obligation unless such action, expenditure or obligation is consistent with the provisions of the then current Annual Business Plan or has otherwise been approved by the Board of Directors. 

9.2.1. If the Board of Directors does not approve any proposed Annual Business Plan submitted to the Board of Directors for approval before the end of the first calendar month of the next Fiscal Year, then until the approval of the Board of Directors is given in respect of such business plan, it shall be deemed that the Annual Business Plan for the relevant Fiscal Year is the Annual Business Plan for the immediately preceding Fiscal Year, adjusted, as may be necessary, to take into account changes in costs that are not within the control of the relevant company (such as, for example only and without limitation, changes in energy and power consumption or rates, salaries, and other costs fixed by governmental or similar bodies or as may be required under existing agreements), provided that it shall be deemed for this purpose the capital budget includes only those capital expenditures, 17if any, which have been expressly approved by the Board of Directors for the relevant Fiscal Year.

9.3. Books and Records. 

The Company shall keep, or cause to be kept, at its principal office, appropriate books and records with respect to its business, including all reports (financial or otherwise) required pursuant to this Agreement. Any books and records kept by or on behalf of the Company (including, without limitation, books of account and records of Company proceedings) may be kept on, or be in the form of, computer disk, hard disk, magnetic tape, or any other information storage device, provided that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Company shall be maintained, for financial reporting purposes, on an accrual basis in accordance with Brazilian GAAP. The foregoing books and records shall be maintained by the Company after the dissolution of the Company for the time periods required by the laws of Brazil but in any event not less than 7 (seven) years. The Shareholders and the Company, to the extent they are able, directly or indirectly, to do so, shall cause the Subsidiaries to comply with the foregoing provisions.

9.4. Annual Reports.

The Company shall prepare, or cause to be prepared, and deliver to each of the Shareholders, within 90 (ninety) days after the close of each Fiscal Year financial statements for each of the Company and the Subsidiaries prepared in accordance with Brazilian GAAP, including a balance sheet of the relevant company dated as of the end of the Fiscal Year, a related statement of income (profit and loss) and a related statement of changes in cash flow of such company for such Fiscal Year, which financial statements are to be audited and reported on in the customary manner by the auditor. The Company shall also deliver to each of the Shareholders all other annual reports that it or its Subsidiaries delivers to or receives from Third Parties (including, without limitation, all reports relating to any of the properties owned, wholly or partially, by any such company) in each case forthwith after the applicable report is so received or delivered.

9.5. Quarterly Reports.

Within 60 (sixty) days after the end of each of the quarters of each Fiscal Year, the Company shall deliver to each Shareholder a report summarizing the status of the activities of the Company and its Subsidiaries as at the end of the quarter, and a comparable report for each of the properties owned, wholly or partially, by the Company and its Subsidiaries. Each quarterly report shall include the unaudited financial statements of each company (including a balance sheet and a statement of income (profit and loss)), and property cash flow report for each property for the quarter then ended, and a related statement of changes in cash flow of such company or property, all of which shall contain comparisons to the previous quarter and to the budgets contained in the relevant Annual Business Plan. Such report shall include, in reasonable detail, a report on any variances between the then current Annual Business Plan and the actual results to date as well as a detailed summary of all significant leasing, development, construction, financing, joint venture, personnel, contractual and legal matters relating to any of properties or any such companies or any other significant developments affecting or relating to any of them, and a report on any delays or difficulties in implementation of any element of the then current Annual Business Plan. The Company shall also deliver to each of the Shareholders all other reports that it and the Subsidiaries delivers to or receives from Third Parties (the "Third 18 Party Reports") in respect of any such companies or any of the properties owned, wholly or partially, by any of them, in each case forthwith after the applicable report is so received or delivered.

9.6. Accounting Principles.

All calculations, reports, financial statements and projections required to be made or prepared hereunder shall be made or prepared in accordance with Brazilian GAAP.

9.7. Language.

The reports referred to in this Clause IX will be delivered by the Company in English, except for the Third Party Reports, which may be initially delivered in Portuguese, in which case the Company undertakes to deliver English translations of such Third Party Reports to CFBrazil, as soon as reasonably practical. 

 X. NON-COMPETITION

10.1. Real Estate Investments in Brazil.

For the term of this Agreement, each of the Shareholders and JIP agree not to, and shall cause the executives of the Company and its Subsidiaries not to, directly or indirectly through an Affiliate or Related Party, jointly or individually, in any capacity whatsoever, and, in the case of the Shareholders and JIP, for as long as such Person directly or indirectly holds Shares of the Company or any indirect participation in any of the Subsidiaries, or, in the case of JIP and the executives, for so long as such Person is an executive of the Company or its Subsidiaries, engage in, establish, acquire, provide assistance to or have a financial or other interest in any business in Brazil which, directly or indirectly through an Affiliate or Related Party of such business, engages in the development or management of regional or national shopping centers or office buildings or office complexes, or the acquisition, development or redevelopment of any such shopping centers and office buildings or office complexes, or any business in Brazil which is similar or competing to the Permitted Business, provided that this restriction shall not extend to investments made by any fund or other Person in which CFBrazil, its controlling shareholders, Related Parties or Affiliates, is an investor but which is managed by another Person which is not an Affiliate of CFBrazil. 

10.2. Future Opportunities.

In addition to Section 10.1 above, for as long as they remain direct or indirect shareholders of the Company, before any of the Shareholders, JIP, their Affiliates and/or Related Parties invest in any Project (as defined below) or in any companies whose principal business is to invest in real estate projects of any nature (either residential or commercial) in Brazil or South America (a "Project"), such Shareholder or JIP, as the case may be, shall notify the other Shareholder or JIP of its interest in such investment, and use its commercially reasonable efforts to allow the joint investment by the Shareholders and JIP in such investment, provided that this restriction shall not extend to investments made by any fund or Person in which CFBrazil, its controlling shareholders, Related Parties or Affiliates, is an investor but which is managed by another Person which is not an Affiliate of CFBrazil.

 XI. REPRESENTATIONS AND WARRANTIES

11.1. Each of the Shareholders declare and assure to the other Shareholders, as well as JIP and the Company declare and assure to each of the Shareholders, that:

  1. Authorization and Powers. The legal representatives have powers to execute this Agreement and carry out all transactions established herein, regardless of any other authorization, and all other corporate measures and otherwise necessary measures have been taken to authorize the execution of this Agreement.
  2. Non-infringement. Approvals. The execution of this Agreement and the acceptance of the obligations determined herein:
  • (a) in the case of legal entities, shall not infringe any provision of the Bylaws or Articles of Association and other corporate documents;
  • (b) shall not violate or infringe under no circumstances, represent or result in non-compliance, under the terms of any of the provisions of any contract or agreement or any other obligation of which it is a party or is related to;
  • (c) shall not infringe upon any provisions of the law, 
    decree, rule or regulation, administrative or legal order to which it is subject;
  • (d) shall not request any approval, permit or authorization of, or notice to, file or registration with any individual or legal entity, court or governmental authority, of any jurisdiction.
  1. Binding Effect. This Agreement is legally executed and represents a mandatory and binding obligation, enforceable against itself according to its terms.
  2. Legal Establishment and Condition. The Company is legally authorized to perform the related activities as these activities is being currently developed by the Company, and has the administrative authorizations necessary to perform its activities.

 XII. TERM

12.1. This Agreement shall be effective for 30 (thirty) years as from the execution and shall be automatically renewed for equal and successive period of 5 (five) years, except if otherwise indicated by any of the Shareholders not later than 1 (one) year prior to the expiration date of this Agreement, or its subsequent renewals.

 XIII. REGISTRATIONS AND EXECUTION

13.1. Binding Effect.

This Agreement shall be irrevocably and unconditionally executed, and the Shareholders and the Company, as well as their heirs and successors for any purposes, shall be bound to this Agreement. The Shareholders and the authorized assignors and successors shall fully comply with the obligations prescribed by this Agreement, including, but not limited to, attendance at Previous Meetings and at Company Meetings, in person or through attorney-in-fact duly appointed, by exercising the voting rights in these meetings in strict compliance with this Agreement, being the Shareholders and the 20 authorized assignors and successors aware of the fact that these obligations shall be subject to the specific performance, under the law. 

13.2. Registration.

This Agreement shall be filed at the head office of the Company, as well as of each of its Subsidiaries, in compliance and for the purposes of the article 118 of the Brazilian Corporations Law. In the Share Registration Book of the Company, next to the registration of the Shares, and in the certificates representing the Shares, if issued, the following text shall be included: "The voting right related to the shares represented by this registration, as well as the related transfer or sale for any purposes shall be bound to the obligations of the Shareholders' Agreement entered into on [ ]". 

13.3. Specific Performance.

The obligations prescribed by this Agreement shall be subject to the specific performance by any of the Shareholders, under the terms of article 118, paragraph 3, of the Brazilian Corporations Law, and the Shareholders agree that this Agreement represents an extrajudicial document valid to commence an execution process for all purposes of articles 461, 462, 639 and subsequent articles of the Brazilian Civil Code, without the prejudice to, on a cumulative basis, charge the losses and damages incurred by the Shareholders, which shall be responsible for said losses and damages arising from the breach of the obligations prescribed by this Agreement. The Shareholders shall not resign from any measure or procedure (including the collection of losses and damages) to which they are entitled at any time. The Shareholders expressly agree and accept to specifically comply with the obligations under this Agreement and accept the legal orders or any other similar measures.

 XIV. GOVERNING LAW AND COMPETENT COURT

14.1. Laws.

This Agreement shall be governed by the laws of the Federative Republic of Brazil. 

14.2. Courts.

The Shareholders selected the courts of the City of Rio de Janeiro, State of Rio de Janeiro, to the exclusion of any other courts, however privileged it may be, as the sole proper court for the purposes of item 15.6 and Clause XVII, as regards to the specific performance of this Agreement, execution resulting from foreclosure imposed by the arbitration court and/or execution order of the arbitration sentence, as well as the declaration of annulment under the terms of Law 9.307/96.

 XV. ARBITRATION

15.1. Dispute Resolution.

The Shareholders shall attempt to resolve any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof, except for Excluded Matters (the "Dispute"). For purposes of this item, "Excluded Matters" means any dispute in respect of any matter or decision that constitutes, or relates to one of the following matters: 

  1. the matters described in Section 4.2; and 
  2. the matters described in Section 5.2.12 (ii), (iii), (iv), (ix) and (xi). The exclusion of these 21 matters shall apply even if any representative of the Shareholders have or have not acted properly in granting its approval or withholding its approval.

15.1.1. In case the Shareholders do not succeed in resolving a Dispute in good faith, the Shareholders shall cause their respective representatives to meet in person or through a telephone conference, no later than 5 (five) Business Days after the Dispute is submitted to them, to attempt, diligently and in good faith, to reach an agreement regarding such issue. 

 15.1.2. If the representatives of the Shareholders are unable to reach an agreement within 10 (ten) Business Days after such meeting is first convened, any Shareholder may submit the Dispute to arbitration, according to the provisions of this Clause.

15.2. Arbitration.

Any Dispute arising out of or relating to this Agreement, the transactions contemplated hereby or the breach of any of the foregoing, with the exception of the Excluded Matters, shall be settled by arbitration in accordance with the rules of FGV's Arbitration and Mediation Chamber ("Arbitration Chamber"), and judgment on the award rendered by the arbitrators may be entered into in any court having jurisdiction thereof, as per Section 14.2. If the chosen rules are silent they shall be supplemented by the Brazilian procedural laws, namely the relevant provisions of Federal Law No. 9,307, of September 23, 1996, and those of the Brazilian Civil Procedure Code.

15.2.1.The arbitration tribunal shall consist of 3 (three) arbitrators, of whom 1 (one) shall be nominated by the MTP Planejamento, 1 (one) by CFBrazil and the third, who shall serve as chairman, shall be chosen by the two Shareholder-nominated arbitrators, or, in the event the Shareholder-appointed arbitrators are unable to designate the third arbitrator, the third arbitrator shall be appointed within the subsequent period of 10 (ten) days in accordance with the rules of the Arbitration Chamber. 

15.2.2.The arbitration shall take place in the City of Rio de Janeiro, State of Rio de Janeiro, Brazil. The arbitration shall be conducted in Portuguese. 

15.2.3.The award of the arbitrators shall be final and binding, including in relation to the Company, that, for such, shall be notified of the beginning of the arbitration and may fully accompany its development. The Shareholders waive any right to appeal, to the extent permitted by law. Each Shareholder retains the right to seek judicial assistance to: 

  • (a) compel arbitration; 
  • (b) obtain interim measures of protection rights prior to institution of pending arbitration and any such action shall not be construed as a waiver of the arbitration proceedings by the Shareholders; and 
  • (c) enforce any decision of the arbitrators, including the final award. 

15.3. Each of the Shareholders shall pay their own costs in respect of the arbitration; however, each of the Shareholders shall afford 50% (fifty per cent) of the fees of each arbitrator. 22

15.4. Any and every document and/or information exchanged between the Shareholders or with the arbitration court shall be confidential, and the Shareholders and the judges agree not to transmit this document and/or information to Third Parties, except when requested by legal and/or administrative authorities, before which the secrecy requirement shall not be imposed.

15.5. The arbitration court shall settle the Dispute based on this Agreement and the Brazilian law, equity principle prohibited. The decision of the arbitration court – which shall be taken by the majority, and the president has the casting vote – shall be pronounced in writing, and be considered final and related to the Shareholders, in addition to be enforceable under the applicable terms, and shall not be subject to any legal or administrative appeal. The Shareholders agree that the decision shall be considered as the sole solution of the dispute between said Shareholders and agree to accept this solution as a true expression of the Shareholders' own intention as regards to this Dispute. 

15.6. The arbitration court shall assign any available and adequate arrangement under the terms of Law 9307/96, including specific performance, being it understood that the decision shall include the distribution of costs, comprising attorney's fees and reasonable disbursements. 

15.7. Impasse on Excluded Matters.

In case of deadlock on any Excluded Matter (a "NonDecided Matter"), the representatives of the Shareholders and the Binding Parties, as the case may be, observing their obligations under this Agreement, shall take all necessary measures to ensure the exclusion of such Non-Decided Matter from the agenda of, or suspend, the applicable Company Meeting until the deadlock is resolved. In case it is not possible to remove the Non-Decided Matter from the agenda of, or suspend, the applicable Company Meeting, the representatives of the Company and the Binding Parties, as the case may be, shall vote against the Non-Decided Matter, unless to so vote against the NonDecided Matter would contravene applicable laws or regulations.

15.8 Prohibition Against Implementation of Excluded Matters without Approval.

For greater certainty and notwithstanding any other provision of this Agreement, no action or decision in respect of an Excluded Matter shall be taken or made by the Shareholders, their representatives, the Company or any Subsidiary until such action or decision has first been approved by both Shareholders. Should a Shareholder, its representatives, the Company or any Subsidiary take any such action or make any such decision in contravention of this Section 15.8, the taking of such action or making of such decision shall represent a material breach of this Agreement.

 XVI. GENERAL PROVISIONS

16.1. Additional Obligations.

The Shareholders agree to execute any other documents or agreements and, under the terms and conditions herein, to perform all measure reasonably necessary or advisable to the conclusion of the transactions prescribed by this Agreement.23

16.2. Business Day.

For all purposes of this Agreement, in case any event or action described herein is supposed to occur on a day that is not a Business Day, the occurrence of such event or action shall be transferred to the first Business Day immediately after the day on which it was supposed to occur. 

16.3. Notices.

Any notices, demands, consents, offers, requests or other communication, required or permitted to be given or made hereunder shall be made in English (except for those notices under Sections 7.2, 7.3 and 7.5, which shall be given or made in Portuguese, if made by the MTP Planejamento), in writing, and shall be given by facsimile transmission or by delivery at the addresses set out below or any other address that the Shareholders may designate in writing from time to time for this purpose. If a notice is given in accordance with the foregoing provisions after 5:00pm (Rio de Janeiro time) on a Business Day, it shall be deemed to have been given on the next Business Day thereafter, and if it is given in accordance with the foregoing provisions on or prior to 5:00pm (Rio de Janeiro time), on a Business Day, it shall be deemed to have been given on such day. 

To the Company: 

Avenida das Américas 4.200, bloco 2, sala 501, duplex, parte
Rio de Janeiro – RJ CEP: 22640-102 Brasil 
Facsimile No. (55 21) 3433-5320 

Para MTP Planejamento ou JIP: 

Avenida das Américas 4.200, bloco 2, sala 501, duplex, parte 
Rio de Janeiro – RJ CEP: 22640-102 Brasil 
Facsimile No. (55 21) 3433-5320 

With a copy to: 

Leoni Siqueira Advogados 

Av. Rio Branco, 138 – 6º andar 
Centro, Rio de Janeiro – RJ Brasil CEP: 20040-002 
Fac-símile No. (55 21) 3077-3999 

Escritório de Advocacia Gouvêa Vieira 

Av. Rio Branco, 85 – 16º andar, 
Centro, Rio de Janeiro – RJ CEP: 20040-002 Brasil 
Fac-símile No. (55 21) 3849-4535 

Para CFBrazil.: 

20 Queen Street West 
Toronto, Ontario, Canada, suite 500 
M5H3R4 

  • At: Corporate Secretary 
    Facsimile No. (1 416) 598-8222 
  • At: Executive Vice President Investments 
    ​Facsimile No. (1 416) 598-8514 

Com cópia para: 

Tozzini, Freire, Teixeira e Silva 

Rua Borges Lagoa, 1328 
04038-904 
São Paulo, SP, Brasil 

16.4. Waiver.

No tolerance or tacit agreement by any of the Shareholders, or even the omission in the sense of requesting the compliance with any provisions hereof, shall affect, decrease or prejudice the right of this Shareholder to request the future compliance with such provisions. Similarly, any waiver or acceptance, by any of the Shareholders, the Company or JIP, of any successive or continuous infringements of any provisions shall not be interpreted as a waiver or acceptance of any other future infringement or as continued infringement, or shall not represent a waiver, change in the said provision or novation, or even a waiver as regards to any rights prescribed by or resulting from this instruments, acceptance or recognition of titles and/or rights other than those expressly prescribed by this Agreement.

16.5. Entire Agreement.

This Agreement shall be considered the sole agreement effective between the Shareholders, the purposes of which has been previously described, and this Agreement supersedes and replaces in its entirety the 2006 Shareholders Agreement and cancels and replaces any other oral and/or written agreement previously executed. In the case of any provision of this Agreement be declared unenforceable, illegal or invalid, in view of the breach of public rules, the remaining provisions shall not be affected and shall remain in effect and, in this case, the Shareholders shall be bound to replace the 25 enforceable, illegal or invalid provision by another  rovision, or provisions, which provide the purposes covered by said provision.

16.5.1. If the IPO of the Company is not accomplished on or before October 31, 2007 or if the IPO is terminated at an earlier date pursuant to Section 16.5.2, the Shareholders shall as soon as practical, and in any event within 30 (thirty) days, following such date take all steps necessary to ensure that the following steps occur in the following order:

  1. amend the Bylaws so that they are identical to the bylaws of the Company that were in effect on June 22, 2006 (a copy of which is attached hereto); and
  2. all of the parties hereto enter into a new shareholders agreement that is identical to the Shareholders Agreement executed on June 22, 2006 (a copy of which is attached hereto), with only such changes as are necessary to reflect that Bertolino Participacoes Ltda. has been merged into the Company and CFBrazil is a direct shareholder of the Company, which new shareholders agreement shall cancel and terminate this Agreement, as well as any other agreement, oral or in writing (by means of any communication, including letter agreement, electronic messages and others), related to the IPO of the Company and said new shareholders agreement and shall constitute the sole agreement effective between the Shareholders with respect to their shareholdings in the Company.

16.5.2. CFBrazil hereby acknowledges that MTP Planejamento, at its exclusive discretion, has the right, with written notice to CFBrazil, to terminate the implementation of the IPO at any time hereafter if market conditions for the IPO cease to be satisfactory. MTP Planejamento's decision shall not be subject to any challenge or claim on the part of CFBrazil. In case of such a termination of the IPO, Section 16.5.1 shall immediately apply.

16.6. Intervening Parties.

The Company and JIP, as the Intervening Parties, execute this Agreement to 

  1. acknowledge their integral awareness of the terms of conditions established herein and, as the case may be, the Intervening Parties agree to perform the necessary measures for the full compliance with the terms of this Agreement; and  
  2. undertake all obligations specifically imposed to on them by this Agreement.

16.7. Languages.

This Agreement is being executed in Portuguese and English. In case of any conflict or inconsistency between the said versions of this Agreement, the Portuguese version shall prevail.

 AnNex I to multiplan shareholder's agreement

Empreendimentos Imobiliários S.A. definitions 

"Affiliate" means any Person directly or indirectly at any time controlling, controlled by, or under direct or indirect common Control with the relevant Person;

"Agreement" means this Shareholders Agreement entered into by and among MTP Planejamento and CFBrazil, with the Company and JIP as intervening parties, on the date hereof;

"Annual Business Plan" means the business and operating plan for the Company and its Subsidiaries (including, without limitation, a capital budget and an operating budget) for the relevant fiscal year, approved by the Board of Directors in accordance with this Agreement;

"Arbitration Chamber" has the meaning assigned to it in Section 15.2 of this Agreement;

"Bertolino" means Bertolino Participações Ltda.;

"BOVESPA" means the Stock Exchange of the State of São Paulo;

"Bylaws" has the meaning assigned to it in Section 4.2(iii) of this Agreement;

"Brazilian Civil Code" means Law No. 10,406 dated January 11, 2002, as amended;

"Brazilian Corporations Law" has the meaning assigned to it in the preamble of this Agreement;

"Brazilian GAAP" means the generally accepted accounting practices in Brazil, as adopted by the Brazilian Securities Commission (CVM) and as recommended by IBRACON – Instituto dos Auditores Independentes do Brazil;

"Board of Directors" means the board of directors of the Company or any Subsidiary, as the context requires;

"Board of Officers" means the board of officers of the Company or any Subsidiary, as the context requires;

“Bound Shares” has the meaning assigned to it in item 2.1. of this Agreement;

"Business Day" means any day other than a Saturday or a Sunday or a statutory or civic holiday in the city of Rio de Janeiro, State of Rio de Janeiro, Brazil or Toronto, Canada; 28 "CF Bound Shares" has the meaning assigned to it in Section 2.1 of this Agreement;

"CFBrazil" means 1700480 Ontario Inc.;

"Company" means Multiplan Empreendimentos Imobiliários S.A.;

"Company Meeting" has the meaning assigned to in Section 6.1 of this Agreement;

"Control" (including derivatives and similar terms, such as "parent company", "subsidiary", "under common control") as related to any Person, means the power held to directly or indirectly guide or promote the management and policies of this Person, both by means of capital ownership with voting rights or by means of agreement or any other instrument; 

"Director" means a member of the Board of Directors;

"Directors Major Decisions" has the meaning assigned to it in Section 5.2.12 of this Agreement;

"Dispute" has the meaning attributed in Section 15.1 of this Agreement;

"Excluded Matters" has the meaning assigned to it in Section 15.1 of this Agreement;

"Executive Officers" means any officers (diretores) of the Board of Officers of the Company or its Subsidiaries;

"Fiscal Year" means a 12-month period, beginning on January 1st and ending on December 
31st;

"Interested Persons" has the meaning assigned to it in Section 6.3 of this Agreement;

"IPO" has the meaning assigned to it in the recitals to this Agreement;

"Interested Third Party" has the meaning assigned to it in Section 7.2.3 of this Agreement;

"JIP" means José Isaac Peres;

"Lien" has the meaning assigned to it in Section 7.6 of this Agreement;

"MTP Bound Shares" has the meaning assigned to it in Section 2.1 of this Agreement;

"MTP Planejamento" means Multiplan Planejamento, Participações e Administração S.A.;

"New Indebtedness" has the meaning assigned to it in Section 5.2.9(iii) of this Agreement; 

"New Investments" has the meaning assigned to it in Section 5.2.9(ii) of this Agreement;

"New Terms" has the meaning assigned to it in Section 7.3 of this Agreement; 

"Non-Decided Matter" has the meaning assigned to it in Section 15.7 of this Agreement;29 "Offer Notice" has the meaning assigned to it in Section 7.2 of this Agreement;

"Offered Shareholder" has the meaning assigned to it in Section 7.2 of this Agreement;

"Offered Shares" has the meaning assigned to it in Section 7.2 of this Agreement;

"Offering Shareholder" has the meaning assigned to it in Section 7.2 of this Agreement;

"Offering Terms" has the meaning assigned to it in Section 7.2 of this Agreement;

"Permitted Business" means, (i) the businesses that are currently being conducted or projected to be conducted by the Company and its Subsidiaries, which include (A) the ownership, planning, execution, development, sale, leasing and servicing and managing of shopping centers and real estate facilities (such as, but not limited to, residential and office buildings and complexes, hotels, apart-hotels, medical centers, and entertainment centers and stores) integrated with said shopping centers or within its area of influence, as well as other related commercial activities; and (B) the ownership, planning, execution, development and sale of other urban residential complexes of quality, as well as the rendering of services related to such residential developments; and (ii) investments in Persons whose businesses are of the nature described in Clauses (A) and (B) above;

"Person" means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof;

"Preferred Shares" has the meaning assigned to it in the recitals to this Agreement;

"Project" has the meaning assigned to it in Section 10.2 of this Agreement;

"Related Party" means, as related to any Shareholder, the directors, officers and/or partners and their related spouses or relatives, up to the second degree;

"RFR Acceptance Notice" has the meaning assigned to it in Section 7.3.1 of this Agreement;

"RFR Offer Acceptance Deadline" has the meaning assigned to it in Section 7.3.1 of this Agreement;

"RFR Sale Offer" has the meaning assigned to it in Section 7.3 of this Agreement;

"Shareholders" shall mean MTP Planejamento and CFBrazil; 

"Shareholders Major Decisions" has the meaning assigned to it in Section 4.2 of this Agreement;

"Shareholders Meeting" shall mean a meeting of the shareholders of the Company or any Subsidiary, as the context requires, held in accordance with the Brazilian Corporations Law;30 "Subsidiaries" has the meaning assigned to it in the third recital of this Agreement;

"Third Party" for the purposes of Clause 7.2 of this Agreement, means any Person that is not directly or indirectly related to the Shareholders;

"Third Party Reports" has the meaning assigned to it in Section 9.5 of this Agreement;

"Threshold Amount" means (i) prior to completion of the IPO, R$240.000.000,00; and (ii) following completion of the IPO, 6% of the sum of (x) the market capitalization of the Company as at the Threshold Amount Measurement Date, determined using the volume weighted average price of the shares of the Company at BOVESPA during the 180 days immediately preceding the Threshold Amount Measurement Date and (y) the consolidated debt outstanding to third parties as reflected on the Company's balance sheet as at the Threshold Amount Measurement Date. Notwithstanding the foregoing, for purposes of determining the Threshold Amount for the period commencing with the completion of the IPO through to the end of the current Fiscal Year, the Threshold Amount shall be determined based on the market capitalization of the Company immediately following completion of the IPO and the total consolidated debt owing to Third Parties as at such date. By way of example, if, immediately following the completion of the IPO, the market capitalization of the Company was R$3.500.000.000,00 and the total consolidated debt of the Company was R$500.000.000,00, the Threshold Amount would be R$ 240.000.000,00 (two hundred and forty million reais);

"Threshold Amount Measurement Date" means, at any time, the preceding June 30th or December 31st, whichever is the most recent to have occurred; and "Transfer" has the meaning assigned to it in Section 7.1 of this Agreement.

 

Last updated on 2013-07-01T10:22:59
Back