SECOND AMENDMENT OF
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS SECOND AMENDMENT, dated effective as of April 3, 2008 (this
“Amendment”), to the Membership Interest Purchase
Agreement, dated as of February 29, 2008 (as amended, supplemented
or otherwise modified from time to time, the “MIPA”),
among JBS S.A. (“JBS”), National Beef Packing Company,
LLC, U.S. Premium Beef, LLC, French Basin Land and Cattle Co., LLC,
TKK Investments, LLC, S-B Enterprises V, LLC, TMKCO, LLC, John R.
Miller, Timothy M. Klein and NBPCO Holdings, LLC. Unless
otherwise defined herein, terms used herein shall have the meanings
assigned thereto in the MIPA.
W I T N E S S E T H :
WHEREAS, pursuant to Section 5.16(a) of the Agreement, JBS was
required to promptly and duly call, give notice of, convene and
hold a meeting of its shareholders within 30 days of the date of
the MIPA, for the purpose of obtaining approval of the transactions
contemplated thereby;
WHEREAS, pursuant to the First Amendment of the MIPA dated March
24, 2008, the parties amended Sections 5.16(a), 7.1(g) and 7.3(c)
to provide that JBS would hold its shareholder meeting on or before
April 2, 2008;
WHEREAS, at the April 2, 2008 JBS shareholders meeting the
requisite quorum was not available to officially approve the
transaction necessitating the issuance of a second invitation
meeting to be held on April 11, 2008; as a result, the requirement
that the transaction contemplated by the Agreement be approved on
or before April 2, 2008 cannot be fulfilled;
WHEREAS, in order to provide a solution to the problem described
above which cannot be cured, JBS has requested an amendment to the
Agreement in order to assure compliance with the covenants
contained in Section 5.16;
WHEREAS, the Sellers are willing to agree to such amendment of
Section 5.16 and to amend the corresponding right to terminate in
Section 7.1(g)(ii) and Section 7.3(c)(iii) that exists by virtue of
the failure of JBS timely to fulfill the conditions established in
Section 5.16;
WHEREAS, the Parties agree that with the adoption of this Amendment
as of April 3, 2008, that there is no breach of the MIPA relating
to Section 5.16 and therefore no right of the Sellers to terminate
the MIPA under Sections 7.1(b)(ii) and 7.1(g)(ii) under conditions
existing as of April 3, 2008;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, JBS, the Sellers and National hereby
agree as follows:
Signature Copy
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NBP MEMBERS/JBS S.A.
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2ND AMENDMENT
MIPA
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1. Waivers . To the extent and only to the
extent that a breach resulted from the failure by JBS to timely
convene a meeting of shareholders to approve the transaction
contemplated by the MIPA prior to the adoption by the Parties of
this Amendment, the Sellers hereby waive any breach of the MIPA
arising from violation of Section 5.16 of the MIPA, and the related
termination rights provided in respect thereof under Section
7.1(b)(ii), Section 7.1(g)(ii) and Section 7.3(c)(iii).
2. Amendments . The Sellers,
National and JBS hereby agree to amend Section 5.16(a), Section
7.1(g)(ii) and Section 7.3(c)(iii) of the MIPA through the First
Amendment of the MIPA with existing words and language stricken and
new language underlined as provided below:
5.16 JBS Shareholder Approval.
Buyer shall promptly after the date of this Agreement give
all required notices and take all action necessary to notify its
shareholders of a meeting to seek approval of the transactions
contemplated hereby and mail to its shareholders information
relevant to their vote and as required under the applicable
law. The Board of Directors of Buyer shall:
(a) promptly and duly
call, give notice of, convene and hold a meeting of its
shareholders, which meeting shall be held not later than April
2 11 , 2008, for the purpose of obtaining
approval of the transactions contemplated hereby;
(b)
