SEC Info℠ | Home | Search | My Interests | Help | Sign In | Please Sign In | ||||||||||||||||||||
As Of Filer Filing For·On·As Docs:Size Issuer Agent 8/15/06 Lone Star Technologies Inc 8-K:1,7,9 8/15/06 12:3.7M Merrill Corp-MD/FA |
Document/Exhibit Description Pages Size 1: 8-K Current Report of Material Events or Corporate HTML 35K Changes 2: EX-10.1 Material Contract HTML 334K 3: EX-10.2 Material Contract HTML 190K 4: EX-10.3 Material Contract HTML 215K 5: EX-10.4 Material Contract HTML 27K 6: EX-10.5 Material Contract HTML 354K 7: EX-10.6 Material Contract HTML 274K 8: EX-10.7 Material Contract HTML 237K 9: EX-10.8 Material Contract HTML 173K 10: EX-99.1 Miscellaneous Exhibit HTML 21K 11: EX-99.2 Miscellaneous Exhibit HTML 28K 12: EX-99.3 Miscellaneous Exhibit HTML 53K
Exhibit 10.3
Capital Increase Agreement
For
Hengyang Valin MPM Steel Tube Co., Ltd.
Among
Hunan Valin Steel Tube & Wire Co., Ltd.
And
Hengyang Valin Steel Tube Co., Ltd.
And
Star China Ltd.
And
Hengyang Valin MPM Steel Tube Co., Ltd.
|
|
|
PAGE NO. |
|
|
1. |
|
DEFINITIONS |
|
2 |
|
|
|
|
|
|
|
2. |
|
CAPITAL INCREASE |
|
7 |
|
|
|
|
|
|
|
3. |
|
AGREEMENT SIGNING AND APPLICATIONS FOR APPROVAL AND REGISTRATION |
|
10 |
|
|
|
|
|
|
|
4. |
|
REPRESENTATIONS AND WARRANTIES OF THE PARTIES |
|
10 |
|
|
|
|
|
|
|
5. |
|
RESPONSIBILITIES OF THE PARTIES |
|
22 |
|
|
|
|
|
|
|
6. |
|
PRE-COMPLETION CONDUCT |
|
23 |
|
|
|
|
|
|
|
7. |
|
ARRANGEMENT FOR EMPLOYEES OF VALIN MPM |
|
25 |
|
|
|
|
|
|
|
8. |
|
TAX OF VALIN MPM |
|
26 |
|
|
|
|
|
|
|
9. |
|
ASSETS AND DEBTS OF VALIN MPM |
|
27 |
|
|
|
|
|
|
|
10. |
|
NO SHOP |
|
27 |
|
|
|
|
|
|
|
11. |
|
CONDITIONS PRECEDENT |
|
27 |
|
|
|
|
|
|
|
12. |
|
PERFECTION OF THE ERP SYSTEM |
|
29 |
|
|
|
|
|
|
|
13. |
|
ADJUTTMENT TO DIVIDENDS PAYABLE TO VALIN MPM’S SHAREHOLDERS |
|
29 |
|
|
|
|
|
|
|
14. |
|
LIABILITIES FOR BREACH OF THIS AGREEMENT |
|
29 |
|
|
|
|
|
|
|
15. |
|
TERMINATION |
|
32 |
|
|
|
|
|
|
|
16. |
|
COSTS AND TAXES |
|
33 |
|
|
|
|
|
|
|
17. |
|
CONFIDENTIALITY |
|
33 |
|
|
|
|
|
|
|
18. |
|
GOVERNING LAW AND DISPUTE SETTLEMENT |
|
34 |
|
|
|
|
|
|
|
19. |
|
NOTICES |
|
35 |
|
|
|
|
|
|
|
20. |
|
MISCELLANEOUS |
|
37 |
|
CAPITAL INCREASE AGREEMENT
THIS AGREEMENT (this “Agreement”) is made in Changsha City, Hunan Province, China (as defined below) on this 15th day of August 2006 by and among the following Parties:
Hunan Valin Steel Tube & Wire Co., Ltd. (hereinafter referred to as “Valin TW”), a legally established and lawfully existing joint stock company of China, with its legal address at Valin Plaza, No. 111 Second Section of Fu Rong Zhong Lu, Changsha, Hunan, China, and Mr. Li Xiao Wei as its legal representative;
Hengyang Valin Steel Tube Co. Ltd. (hereinafter referred to as “Valin ST”), a legally established and lawfully existing limited liability company of China, with its legal address at No. 10 Dali New Village, Zhengxiang District, Hengyang, Hunan, China, and Mr. Zhao Jianhui as its legal representative;
Star China Ltd. (hereinafter referred to as “Star China”), a legally established and lawfully existing corporation under the Laws of Cayman Islands, with its legal address at: c/o Lone Star Technologies, Inc., 15660 N. Dallas Pkwy., Ste. 500, Dallas, TX 75248, United States of America, and Mr. Rhys Best as its representative; and
Hengyang Valin MPM Steel Tube Co. Ltd. (hereinafter referred to as “Valin MPM”), a legally established and lawfully existing limited liability company of China, with its legal address at No. 10 Dali New Village, Zhengxiang District, Hengyang, Hunan, China, and Mr. Zhao Jianhui as its legal representative.
Valin TW and Valin ST are hereinafter collectively referred to as the “Chinese Parties”, and individually as a “Chinese Party”. Valin TW shall be jointly and severally liable for the performance or fulfilment of any and all of the obligations of Valin ST and Valin MPM under this Agreement, whereas each of Valin ST and Valin MPM shall only be liable for the performance or fulfilment of its own obligations under this Agreement.
WHEREAS,
1. Valin MPM is a limited liability company duly organized and validly existing under PRC Law. As at the date of this Agreement, the registered capital of Valin MPM (rounded down to the nearest RMB1,000) is RMB973,725,000, of which 68.52% was contributed by Valin TW and 31.48% was contributed by Valin ST.
2. On December 27, 2005, Hengyang Steel Tube Co. Ltd., a limited liability company organized under PRC Law (hereinafter referred to as “Hengyang Steel Tube”), merged by absorption into Valin MPM (the “Merger”), and ownership of all of Hengyang Steel
1
Tube’s assets immediately prior to the Merger was assumed by Valin MPM upon such Merger.
3. Star China has agreed to contribute to Valin MPM, on and subject to the terms and conditions of this Agreement, and to convert Valin MPM into a Sino-foreign enterprise, such that upon the establishment of the JV Company, Star China will hold 40% of the equity interest in the JV Company.
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
“Affiliate” means any Person which is directly or indirectly controlled by, under common control with or controlling a Party, and its officers, directors, managers, and employees. The terms “controlled”, “control” or “controlling” shall mean the holding of more than fifty percent (50%) equity interests or of the power to appoint the majority of directors.
“Articles of Association” mean the Articles of Association of the JV Company, dated on or about the date hereof, as the same may be revised, supplemented or restated from time to time in accordance with its terms.
“Base Date of Valuation” means December 31, 2005.
“Billet Supply Agreement” means the agreement entered into on August 15, 2006 between Valin MPM and Valin ST pursuant to which Valin MPM will supply steel billets to Valin ST, as the same may be revised, supplemented or restated from time to time in accordance with its terms.
“Business Day” means any day on which the banking institutions in Dallas, Texas USA and those in Hengyang, PRC are generally open for business to the public.
“Business License” means the business licence of the JV Company issued by the Registration Authority, as the same may be amended from time to time.
“Capital Increase” means the aggregate amount of registered capital to be contributed to the JV Company by Star China in accordance with the terms of this Agreement and the approval documents from the Examination and Approval Authorities, which will convert Valin MPM into a Sino-foreign joint venture enterprise and will result in Star China holding 40% of the equity interest in the JV Company.
2
“Capital Increase Registration Date” means the date on which the Business License reflecting the Capital Increase is issued.
“China” or “PRC” means the People’s Republic of China, for purpose of this Agreement only excluding Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan.
“Confidential Information” shall mean technology and know-how as well as trade secrets, strategic business or marketing information, business projections, secret processes and other processes, data, formulae, programs, manuals, designs, sketches, photographs, plans, drawings, specifications, reports, studies, findings, non-patented inventions and ideas, and other information relating to the production, packaging, use, pricing, or sales and distribution, whether of a technical, engineering, operational, business or economic nature, no matter whether it is designated as “Confidential” by the Parties or their Affiliates, or provided by the Parties or their Affiliates in connection with the JV Company and any matters related thereto, or the implementation of and/or the conduct of the business contemplated by this Agreement and the other contracts contemplated herein. Confidential Information, however, shall not include (i) information which is now or hereafter becomes part of the public domain through no fault of the receiving Party, (ii) information that the receiving Party can demonstrate was already in its possession at the time of receipt from a disclosing Party, and (iii) information which hereafter comes into the possession of the receiving Party and was or is not acquired by the receiving Party from a Person directly or indirectly under an obligation of secrecy to the original providing Party.
“Effective Date” means the date this Agreement takes effect, i.e. the date on which the Examination and Approval Authorities issue their approval for the transaction contemplated under this Agreement.
“Examination and Approval Authorities” means the Ministry of Commerce of China or its authorized local governmental authorities.
“Event of Force Majeure” means any objective event which is beyond the control of the Parties, and which is unforeseen, unavoidable and unconquerable, and which prevents any of the Parties from performing all or a material part of its obligations. Such event includes any natural disaster, strike, riot, war and act of terrorism.
“Financial Statements” means the financial statements of Valin MPM or the JV Company (as the case may be) and its subsidiaries on a consolidated basis audited by the Auditors (as defined in the JV Contracts) as of and for the year ended on the Base Date of Valuation and as of and for the period ended on the Funding Valuation Date.
3
“Funding Date” means a Business Day no later than fifteen (15) Business Days after the issuance of a business license to the JV Company, on which Star China pays the amount of the Capital Increase to the JV Company in accordance with the terms of this Agreement.
“Funding Valuation Date” means (a) in the case where the Effective Date occurs on or prior to the 15th day of a calendar month, the last day of the preceding calendar month, and (b) in the case where the Effective Date occurs after the 15th day of a calendar month, the last day of the same calendar month.
“Governmental Body” means any government or governmental or regulatory body thereof, or political subdivision thereof, whether national, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).
“HYST Group” means Hunan Hengyang Steel Tube (Group) Co., Ltd., a state-owned enterprise group company established and existing under the PRC laws with its registered address at No. 10 Dali New Village, Zhengxiang District, Hengyang, Hunan, China.
“Intellectual Property Rights” mean patents, trade marks, service marks, trade names, internet domain names, rights in designs, copyright (including rights in computer software and databases), rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any such rights and all rights or forms of protection having equivalent or similar effect anywhere in China.
“JV Company” means a Sino-foreign equity joint venture to be formed by the conversion of Valin MPM from a domestic enterprise pursuant to the terms of this Agreement and the JV Contract, to be named Hengyang Valin MPM Steel Tube Co., Ltd. or otherwise as the Parties may agree.
“JV Contract” means the joint venture contract in relation to the establishment of the JV Company to be signed by the Chinese Parties and Star China on or about the date of this Agreement, as the same may be revised, supplemented or restated from time to time in accordance with its terms.
“Knowledge” is deemed to include knowledge, information and belief which a Party would have if the Party had made all reasonable enquiries and, without limitation, includes the knowledge, information and belief of its directors, officers and employees.
4
“Law” or “Laws” means any national, state, provincial or local law, statute, rule, regulation or ordinance of any Governmental Body.
“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, mediation, investigation, inquiry, proceedings or claims (including counterclaims) by or before a Governmental Body.
“Liability” or, collectively, “Liabilities” means any debt, loss, damage, adverse claim, fines, penalties, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or as a result of Law, statute or regulation, or otherwise), and including all costs and expenses relating thereto including all fees, disbursements and expenses of legal counsel, experts, engineers and consultants and costs of investigation).
“Lien” means any lien, pledge, collateral, deed of trust, lease, option, mortgage, right of first refusal, or transfer restriction under any shareholder or similar agreement, encumbrance or any other restriction or limitation whatsoever.
“Order” means any order, administrative decision, administrative penalty, injunction, judgment, or ruling of a Governmental Body, or arbitration award.
“Parties” means the Chinese Parties, Star China and Valin MPM.
“Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity.
“PRC GAAP” means generally accepted accounting principles promulgated by Ministry of Finance, in the PRC, applied on a consistent basis throughout the periods presented.
“PRC Law” mean the laws, regulations and enactments promulgated by various levels of Chinese legislatures, judicial and administrative authorities that are available to the public.
“Registration Authority” means the State Administration for Industry and Commerce or its local counterpart.
“Renminbi” or “RMB” means legal currency in China.
“Sale, Marketing and Supply Agreement” means the sale, marketing and supply agreement entered or to be entered into by and between the JV Company, the trading company described in Section 8.21 of the JV Contract,
5
Lone Star Technologies Inc. and Valin TW in respect of the sale, marketing and supply of Tubular Products (as defined therein) in the Territory (as defined therein), as the same may be revised, supplemented or restated from time to time in accordance with its terms.
“Senior Management Personnel” shall mean the General Manager, Deputy General Managers, Chief Financial Officer and Chief Operating Officer of the Valin MPM.
“Taxing Authority” means any Governmental Body responsible for the administration of any tax.
“Technology Cross License Agreement” means the agreement to be entered into between the JV Company and Lone Star Technologies for the license by Lone Star Technologies or such Affiliate(s) of certain technology and know-how to the JV Company, which may be revised, supplemented and restated in accordance with its terms.
“Trademark License Agreement” means the agreement to be entered into between the JV Company and Lone Star Steel Company for the license by Lone Star Steel Company or such Affiliate(s) of certain trademarks to the JV Company, which may be revised, supplemented and restated in accordance with its terms.
“Trading Company Shareholder Agreement” means the shareholder agreement between Star China and VTW in respect of the establishment of the trading company as described in Section 8.21 under the JV Contract.
“Transaction Documents” means this Agreement, the JV Contract, Sales, Marketing and Supply Agreement, Technology Cross License Agreement, Trademark License Agreement, Billet Supply Agreement, Trading Company Shareholder Agreement and Valin ST Sales, Marketing and Supply Agreement.
“US Dollars” or “US$” means legal currency in the United States of America.
“Valin ST Sales, Marketing and Supply Agreement” means the sales, marketing and supply agreement of the date of or about the date of this Agreement by and between Valin ST, the trading company described in Section 8.21 of the JV Contract, Lone Star Technologies Inc. and Valin TW in respect of the sale, marketing and supply of Tubular Products (as defined therein) in the Territory (as defined therein), as the same may be revised, supplemented or restated from time to time in accordance with its terms.
“Working Personnel” shall mean all employees and staff of the JV Company other than Senior Management Personnel and members of the Board, and including
6
employees and/or staff who are legally employed by an affiliate of the JV Company but who are principally engaged in the business of the JV Company.
Term |
|
Article |
“Agreement” |
|
Recitals |
“Base Rate” |
|
2.1(b) |
“Chinese Parties” |
|
Recitals |
“Chinese Party” |
|
Recitals |
“Chinese Parties Indemnified Parties” |
|
14.3 |
“Claim Period” |
|
14.1 |
“Dispute” |
|
18.2 |
“Hengyang Steel Tube” |
|
Recitals |
“ICC Rules” |
|
18.2 |
“Star China” |
|
Recitals |
“Star China Indemnified Parties” |
|
14.2 |
“Loss” |
|
14.2 |
“Losses” |
|
14.2 |
“Material Contracts” |
|
4.2(o) |
“Merger” |
|
Recitals |
“MPM Real Property Leases” |
|
4.2(k) |
“Policies” |
|
6.1(u) |
“Related Persons” |
|
4.2(s) |
“Terminating Party” |
|
15.1 |
“Valin MPM” |
|
Recitals |
“Valin ST” |
|
Recitals |
“Valin TW” |
|
Recitals |
7
2.3 Adjustment Caused by Fluctuation of Exchange Rate
Amount of Capital |
x |
(1 |
- |
Half of the percentage increase in the Base Rate) |
8
Amount of Capital |
x |
(1 |
+ |
Half of the
percentage |
2.4 Payment
(a) Subject to fulfilment or waiver (where permissible) of the conditions set forth in Article 11 and the other provisions hereof, on the Funding Date, Star China shall pay the amount of the Capital Increase set forth in Article 2.2 (as adjusted pursuant to Article 2.3) by wire transfer of immediately available funds to a bank account or accounts specified by Valin MPM, provided that such wiring instructions shall have been provided to Star China not less than three (3) Business Days prior to such payment.
(b) Within five (5) Business Days after the payment provided in Article 2.4(a) is effected, the JV Company shall complete the relevant Capital Increase asset verification procedure. The capital verification report prepared by a registered accountant in China shall be conclusive evidence of the performance of all Parties’ contribution obligations under this Agreement.
(c) Subject to the terms and conditions hereof, Star China shall pay an amount equivalent to the Capital Increase in one lump sum.
(d) Subject to the terms and conditions of this Agreement, Valin TW shall cause an irrevocable Letter of Credit (“LC”) to be issued on the date of the issuance of the capital verification report referred to under Article 2.4(b) hereof for the benefit of Star China in an amount equal to 10% of the Star China’s Capital Increase to guarantee the performance or fulfilment of any and all obligations of Valin TW, Valin ST and Valin MPM under the Transaction Documents. The LC shall be denominated in US Dollars and issued by the Bank of China(Hong Kong) or another international bank of similar stature. The LC shall have a term of two (2) complete Audit Cycles of the JV from the date hereof. The LC guaranteed amount shall not be reduced during such term. Star China shall only draw down on the LC for the portion of the damages resulting from the breach by the Chinese Parties or Valin MPM under the Transaction Documents. “Two (2) complete Audit Cycles” hereof means a term from the Funding Date until the end of that year and the full fiscal year thereafter.
9
10
(b) Valin MPM is a duly incorporated limited liability company and validly existing under PRC Law and has obtained all the necessary approval, licenses and permits necessary to conduct its authorized business.
(c) The Merger and the merger of Hengyang Steel Billet Co Ltd and Hengyang Special Steel Co Ltd into Hengyang Steel Tube have been completed in accordance with applicable PRC Law and Valin MPM has assumed ownership of all of Hengyang Steel Tube’s assets immediately prior to the Merger as described in Recital 2 of this Agreement.
11
12
13
14
15
16
Each of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of Valin MPM and of the other parties thereto, enforceable against each of them in accordance with its terms and, upon consummation of the transactions contemplated by this Agreement, shall, except as otherwise stated in Appendix 4.2(o), continue in full force and effect without penalty or other adverse consequence. Valin MPM is not in default under any Material Contract, nor, to the Knowledge of Valin MPM or the Chinese Parties, is any other party to any Material Contract in breach of or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default by Valin MPM or any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any Material Contract. Valin MPM has delivered to Star China true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto.
17
18
19
20
21
Unless otherwise stipulated in this Agreement, for completion of the Capital Increase under this Agreement and for the conversion of Valin MPM into a Sino-foreign joint venture enterprise, the Chinese Parties and Star China shall work closely to obtain all necessary governmental approvals. The Chinese Parties shall take the lead and Star China or its relevant Affiliates shall provide all the reasonable and necessary assistance to the Chinese Parties in obtaining all necessary approvals. The Chinese Parties and Star China shall provide with each other the true and complete copies of all correspondence between any of them and any of the Governmental Authorities in connection therewith, other than correspondence containing governmental secrets and commercial secrets of the of the relevant Parties; provided, that the subjects of such correspondence shall be promptly disclosed in writing to the other Parties.
Unless otherwise stipulated in this Agreement, for the completion of this Agreement and the Capital Increase hereunder and for the establishment of the JV Company, Star China shall:
(a) Procure all authorizations, approvals and consents from Governmental Bodies having jurisdiction over Star China, or any third party (including without limitation Star China’s own creditor or group of creditors), that are requisite to the completion of the Capital Increase under this Agreement, in accordance with the Laws applicable to Star China as well as the contracts, its charter and material agreements binding upon it;
(b) In accordance with the terms of this Agreement together with other relevant documents, make payment of the Capital Increase amount to the JV Company in full as contemplated by Article 2; and
(c) According to the requirements of the operations of the JV Company (if any), assist Valin MPM to purchase machinery, equipment and other materials outside China upon favourable terms and conditions; provided that Star China shall not be required to provide any financial assistance or support to Valin MPM in order to fulfil this covenant.
22
(a) Where any of the Examination and Approval Authorities requires the Parties to this Agreement to make any amendment to this Agreement, the Parties shall forthwith consult in good faith and determine the amendment proposals corresponding to the requirements of the Examination and Approval Authorities and submit the revised version of this Agreement to such Examination and Approval Authorities by the Chinese Parties within ten (10) days after the execution of the revised version of this Agreement; provided, that any Party may terminate this Agreement without any liability to any other Party hereto if it determines, in its reasonable judgment, that any required change is not acceptable.
(b) For realization of the purpose of this Agreement and the transactions contemplated hereby, the Parties to this Agreement shall use their commercially reasonable endeavours to procure all necessary approvals from the Examination and Approval Authorities. In the process of obtaining such approvals, any Party shall provide positive and bona fide assistance to the reasonable requirement by other Parties; provided that such assistance shall not include the incurrence of more than de minimis cost by any Party.
23
24
On or prior to the Establishment Date, the JV Company will enter into employment agreements in the form as set forth in Schedule 2 of the JV Contract with the existing Working Personnel of Valin MPM who are necessary to operate the steel production assets. The Term of the employment agreement shall comply with the applicable PRC Law and shall be at least of three (3) years. The welfare treatment of the Working Personnel shall be no less favourite than that was set out in the Schedule 10
25
of the JV Contract. The JV Company will acknowledge the former length of service of such Working Personnel with HYST Group and the JV Company will offer the Working Personnel employment benefits based on the aggregate of the former length of service with HYST Group and the new length of service with the JV Company of such Working Personnel. During the operation of the JV Company going forward, issues regarding the labor contract or the employment relationship with the above Working Personnel shall be settled in accordance with the then applicable PRC Law. However, (i) any compensation, if any, payable to Working Personnel of Valin MPM due to the termination of labor contract with such Working Personnel as a result of the capital contribution to the JV Company by Star China or the conversion of Valin MPM into the JV Company and (ii) any liabilities arising from the employees’ employment by HYST Group, Valin MPM, the JV Company or their respective Affiliates which have not been reflected in the financial statements as of the Base Date of Evaluation (as defined in the Capital Increase Agreement) or otherwise disclosed in writing by the Chinese Parties to Star China before the Funding Date, shall be borne by the Chinese Parties only. The occurrence of any claim in relation to the aforesaid responsibilities of the Chinese Parties shall not constitute breach of the representations, warranties or undertakings of the Chinese Parties under this Agreement, provided, however, that the Chinese Parties shall perform their obligations in a timely manner in the event that it is obliged to make relevant payments.
On or before the Capital Increase Registration Date, Valin MPM shall pay all unpaid taxes including enterprise income tax (including personal income tax payable on behalf of its Working Personnel), business tax, value added tax, real estate taxes, custom duties, stamp duty, and any other taxes or similar government levies, together with related penalties and interest, which taxes are due and payable by Valin MPM prior to the Capital Increase Registration Date in accordance with the applicable tax Laws, regulations and rules of China, or shall make full disclosure or reserve in accordance with PRC Law with respect to such taxes in its Financial Statements. After the Capital Increase Registration Date, the Chinese Parties shall be responsible for all tax actually paid or payable by the JV Company in connection with taxable matters occurring before the Capital Increase Registration Date which have not been expressly disclosed or reserved in its Financial Statements. Provided that the Chinese Parties fulfil their obligations under this Article 8, the occurrence of such tax-related issues shall not be regarded as the Chinese Parties having committed a breach of their warranties or covenants or obligations hereof.
26
From the date of this Agreement until the Funding Date or the earlier termination of this Agreement prior to the Funding Date, the Chinese Parties shall not, and the Chinese Parties shall cause each Affiliate and each of their respective officers, directors, employees, representatives and agents not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiry, proposal, offer or discussion, or engage in any discussions or negotiations, with any party (other than Star China or its Affiliates) concerning any business transaction involving the sale of Valin MPM or JV Company, the equity interests, or any subsidiary or the sale of all or substantially all of the assets of Valin MPM or JV Company or any of the subsidiaries (other than assets sold in the ordinary course of business).
(a) approvals to this Agreement by Provincial Commission of State-owned Assets Supervision and Administration in Hunan;
(b) approval to this Agreement by National Development and Reform Commission;
(c) approval to this Agreement, the JV Contract and the Articles of Association by the Examination and Approval Authority; and
(d) other governmental approvals (including any Governmental Body anti-trust review and approval, if required) as required by Law.
27
(a) all necessary corporate approvals (including without limitation, shareholders and board resolution) of the Chinese Parties and Valin MPM and governmental and regulatory approvals for the Capital Increase and the establishment of the JV Company having been obtained and not revoked;
(b) the execution of the Transaction Documents by the parties thereto;
(c) all the representations and warranties of the Chinese Parties and/or Valin MPM under this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Funding Date as though made at and as of the Funding Date, except to the extent such representations and warranties expressly speak as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date);
(d) there is no material breach of any of the terms of the Transaction Documents by the parties thereto (other than Star China ) and no Event of Force Majeure has occurred under the terms hereof or thereof;
(e) confirmation that all of the consents to the Merger and the transactions contemplated hereunder or under the Transaction Documents required by loan agreements listed in Appendix 11.2(e) have been obtained;
(f) the termination of the Management Service Agreement dated January 1, 2006 between Valin ST and Valin MPM;
(g) the Chinese Parties and Valin MPM shall have performed and complied in all material respects with all obligations and agreements required in this Agreement and other Transaction Documents to which it is a party from the date hereof to the Funding Date to be performed or complied with by them on or prior to the Funding Date;
(h) No Material Adverse Change has occurred. “Material Adverse Change” means any change, effect, event, occurrence, state of facts or development which individually or in the aggregate would reasonably be expected to result in any change or effect, that is materially adverse to (i) the historical, short-term or long-term business, assets, properties, results of operations, condition (financial or otherwise) or prospects of Valin MPM or the JV Company, (ii) the consummation by the parties hereto of the transactions contemplated by this Agreement or other Transaction Documents, (iii) regulatory or political conditions in the PRC or any outbreak of hostilities, terrorist activities or war or (iv) the ability of the any of the Chinese Parties or Valin MPM to consummate the transactions contemplated by this Agreement or other
28
Transaction Documents or perform their obligations under this Agreement or other Transaction Documents;
(i) The employees as identified in Appendix 11.2(i) shall have entered into Employment Contracts in the form with the JV Company prior to the Funding Date;
(a) within ninety (90) days after the Funding Date, the JV Company shall obtain required license to cure the current IP infringement relating to the ERP System currently in use in order that the JV Company could use the ERP System with proper rights or authorisation; or
(b) within ninety (90) days after the Funding Date, the JV Company will implement a new ERP system with similar features of the current ERP System with proper rights or authorisation to replace the current ERP System.
The Parties hereto agree to adjust the dividends payable to Valin MPM’s shareholders for the period from the date hereof until the Funding Date in the manner as set for in Appendix 13.
29
30
31
32
33
34
35
Hunan Valin
Steel Tube & Wire Co., Ltd.:
Hua Ling Tower, No. 111 Fu Rong Road (M)
Changsha Municipality, Hunan Province
People’s Republic of China
Attention: Head of Securities Department
Facsimile No.: (86) 731-2245196; (86) 731-4447112
Hengyang
Valin Steel Tube Co. Ltd.:
No. 10 Dali New Village, Zhengxiang District
Hengyang, Hunan Province
People’s Republic of China
Attention: Head of Office
Facsimile No: (86)734-8870188
Hengyang
Valin MPM Steel Tube Co. Ltd.:
No. 10 Dali New Village, Zhengxiang District,
Hengyang, Hunan Province
People’s Republic of China
Attention: Head of Office
Facsimile No: (86)734-8870188
Star China
Ltd.:
c/o Lone Star Technologies, Inc.
15660 N. Dallas Pkwy., Ste. 500,
Dallas, TX 75248
United States of America
Attention: General Counsel
Facsimile No: (+1) 972-770-6474
with a copy to:
Weil, Gotshal
& Manges LLP
200 Crescent Court, Suite 300
Dallas, Texas 75201
United States of America
Attention: Mary R. Korby
Fax: (+1) 214-746-7777
36
37
IN WITNESS WHEREOF, this Agreement has been signed by the authorized representatives of the Parties on the date first above written.
Hunan Valin Steel Tube & Wire Co., Ltd. |
|||
|
|||
By: |
/s/ Cao HuiQuan |
|
|
|
|
|
|
Name: Cao HuiQuan |
|
||
|
|
||
Title: Director/General Manager |
|
||
|
|
||
Hengyang Valin Steel Tube Co., Ltd. |
|||
|
|||
By: |
/s/ Zhao JianHui |
|
|
|
|
|
|
Name: Zhao JianHui |
|
||
|
|
||
Title: Chairman/General Manager |
|
||
|
|
||
Star China Ltd. |
|
||
|
|
||
By: |
/s/ Rhys J. Best |
|
|
|
|
|
|
Name: |
|
||
|
|
||
Title: |
Chief Executive Officer |
|
|
|
|
||
Hengyang Valin MPM Steel Tube Co., Ltd. |
|
||
|
|
||
By: |
/s/ Zhao JianHui |
|
|
|
|
|
|
Name: Zhao JianHui |
|
||
|
|
||
Title: Chairman/General Manager |
|
||
|
|
||
[Capital Increase Agreement Signature Page]
38
Appendix 13
1. A Big 4 accounting firm selected by Star China and Valin MPM (the “Accountant”) will prepare an audited balance sheet as of December 31, 2005 (the “2005 Year-End Balance Sheet”).
2. The Accountant will prepare an audited balance sheet as of the Funding Date (the “Funding Date Balance Sheet”).
3. If the Working Capital (defined as current assets minus current liabilities) as of the Funding Date Balance Sheet (as adjusted below) is lower than the Working Capital in the 2005 Year-End Balance Sheet, there will be no dividend payable by Valin MPM to its shareholders out of the incremental to shareholders’ equity between the period from January 1, 2006 and the Funding Date. If the Working Capital as of the Funding Date Balance Sheet (as adjusted below) is higher than the Working Capital in the 2005 year-End Balance Sheet, Valin MPM’s shareholders will be entitled to a dividend(2) for the period between the period between January 1, 2006 and the Funding Date. The Working Capital as of the Funding Date will be the Working Capital indicated in the Funding Date Balance Sheet, adjusted as follows: (1) the capital expense (i.e., fixed asset investment) between the period January 1, 2006 and the Funding Date will be an addition, (2) the increase of long-term liability for the period between January 1, 2006 and the Funding Date will be a deduction and (3) the decrease of long-term liability for the period between January 1, 2006 and the Funding Date will be an addition. Valin MPM shall covenant that the amount of “due to related-parties” shall not be decreased during the period between January 1, 2006 and the Funding Date.
(2) The dividend payable to Valin MPM’s shareholders for the period between January 1, 2006 and the Funding Date will be the net income for such period, deducted by (1) prior year’s losses, (2) income tax payable for such period and (3) legal reserve or other reserve set aside in accordance with PRC Company Law. The amount of (3) will be recorded as “payable to shareholders” and will be included in the future dividend payment payable to Valin MPM’s shareholders.
4. The dividend for the period between the Funding Date and December 31, 2006 will be paid to the MPM’s shareholders based on their respective shareholding percentage.
5. The auditing expenses for the auditing of 2005 Year-End Balance Sheet will be borne by Star China, and the auditing expenses for the auditing of Funding Date Balance Sheet and 2006 Year-End Balance Sheet will be borne by Valin MPM.
39
This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
6/30/07 | ||||
12/31/06 | 10-K | |||
Filed on / For Period End: | 8/15/06 | |||
1/1/06 | ||||
12/31/05 | 10-K | |||
12/27/05 | ||||
List all Filings |