EXHIBIT 4.18
CONTRACT FOR THE ASSIGNMENT
OF REGISTERED CAPITAL
AND
INVESTMENT AGREEMENT
BY AND BETWEEN
JIANGSU XXXXXXXX XXXXX PRIDECO TUBULAR COMPANY LIMITED
THE PARTIES IDENTIFIED AS THE "SHAREHOLDERS" ON
SCHEDULE 1.1 TO THIS AGREEMENT
AND
GRANT PRIDECO MAURITIUS LIMITED
March 26, 2002
CONTRACT FOR THE ASSIGNMENT
OF REGISTERED CAPITAL
AND
INVESTMENT AGREEMENT
THIS CONTRACT FOR THE ASSIGNMENT OF REGISTERED CAPITAL AND INVESTMENT
AGREEMENT (this "Agreement") is made and entered into as of March 26, 2002
(the "Signing Date"), by and between Jiangsu Xxxxxxxx Xxxxx Prideco Tubular
Company Limited, a Sino-foreign equity joint venture organized and existing
under the laws of China (hereinafter referred to as the "JV"), the parties
identified as the "Shareholders" on Schedule 1.1 to this Agreement, Grant
Prideco Mauritius Limited, a joint venture organized and existing under the laws
of Mauritius (hereinafter referred to as "Grant" and Grant Prideco, Inc. a
Delaware corporation ("GPI"). Each of the foregoing parties is sometimes
referred to herein as a "Party", and all the foregoing parties are referred to
herein collectively as the "Parties".
RECITALS:
WHEREAS, the JV is engaged in the business of researching, developing,
manufacturing and selling drilling pipes and equipment and other pipeline
accessories, and has its principal place of business in Jiangyan City, Jiangsu
Province, China;
WHEREAS, the parties previously entered into that certain Investment
Agreement dated March 13, 1998, pursuant to which Grant became a shareholder of
the JV and entered into an alliance and certain other agreements with the JV
(hereinafter, the "March 1998 Agreements")
WHEREAS, Grant wishes to increase its investment in the JV for the
manufacture and sale of drilling pipes in and outside of China, and in
connection therewith wishes to acquire certain additional shares of the JV;
WHEREAS, Jiangsu Shuguang Group Company ("Shuguang") desires to sell
and assign to Grant, and Grant wishes to acquire from the Shuguang for cash and
shares of Grant Prideco common stock, certain of its shares and interests in the
registered capital of the JV, on the terms and conditions set out herein;
WHEREAS, Grant (formerly known as Xxxxxxxxxxx Mauritius) desires to
exchange with certain shareholders of the JV shares of common stock of Grant
Prideco, Inc. for shares of the JV owned by such shareholders, in each case in
the amounts and pursuant to the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
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ARTICLE 1 - DEFINITIONS
1.1 Definitions. The following terms shall have the following meanings
respectively:
"Affiliate" means, as to any Person, any Person directly or indirectly
controlling or controlled by or under common control with such Person.
For purposes of this definition, the term "control" when used with
respect to a Person means the direct or indirect ownership of more than
fifty percent (50%) of the ownership interests, registered capital or
voting power of a Person or the power, directly or indirectly, to vote
more than fifty percent (50%) of the securities having ordinary voting
power for the election of directors of a Person. For purposes of this
Agreement, STOCO and Xxxxxxx XXX are considered Affiliates and Grant
and GPI are considered Affiliates.
"Agreement" means this Agreement.
"Amended JV Articles" means the Second Amended and Restated Articles of
Association of the JV to be entered into by and between Shuguang,
Xxxxxxx XXX, STOCO and Grant effective as of the Closing Date, in the
form attached hereto as Exhibit A.
"Amended JV Contract" means the Second Amended and Restated Joint
Venture Contract to be entered into by and between Shuguang, Xxxxxxx
XXX, STOCO and Grant effective as of the Closing Date, in the form
attached hereto as Exhibit B.
"Business Day" means a Day on which banks are not required or
authorized to close in Beijing or New York City.
"Business License" means the JV's business license issued by SAIC, as
required by Legal Requirements.
"Cash Consideration" means an aggregate of US$2,000,000, to be paid to
Shuguang as set forth on Schedule 3.1.
"China" means the People's Republic of China.
"Closing" and "Closing Date" have the respective meanings set out in
Section 3.4.
"COFTEC" means the Commission of Foreign Trade and Economic Cooperation
of Jiangyan City, China (or other appropriate city, municipality or
province of China having jurisdiction over the matter).
"COFTEC Approval" has the meaning set out in Section 5.1.1.
"Day" or "Days" means the 24-hour period or periods commencing at 00:00
midnight in Jiangsu Province, China.
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"Xxxxxxx Money Deposit" means an aggregate of US$200,000, paid into
escrow by Grant pursuant to the terms and conditions of that certain
Letter of Intent dated December 17, 2001, by and between Xxxxx, XX,
Shuguang and STOCO.
"Exchange Consideration" means the Grant Shares to be exchanged with
the Exchanging Shareholders for shares of the JV, as set forth on
Schedule 3.2.
"Exchange Shares" means the JV Shares to be exchanged and assigned by
the Exchanging Shareholders to Grant for the Exchange Consideration.
"Exchanging Shareholders" means the entities listed on Schedule 1.1
other than Shuguang.
"Governmental Authorizations" means all applicable or necessary
authorizations, consents, decrees, permits, waivers, privileges,
approvals from and filings and registrations with all applicable
Governmental Instrumentalities.
"Governmental Instrumentality" means any ministry, department,
political subdivision, instrumentality, agency, bureau, corporation or
commission under the direct or indirect control of any country or any
province, municipality or other political subdivision thereof, and such
country, province, municipality or other political subdivision.
"GPI" has the meaning set out in the recitals to this Agreement.
"Grant's Losses" has the meaning given such term in Section 9.2.
"Grant Shares" means the aggregate 1,300,000 shares of common stock,
$.01 par value, of GPI to be issued, exchanged and allocated among the
Shareholders as set forth on Schedules 3.1 and 3.2.
"Initial Transactions" means the purchase by Shuguang of all Shares
owned by China National Petroleum and Natural Gas Corporation Great
Well Drilling Company and Beijing Huayou Economic and Technology
Development Company.
"JV" has the meaning set out in the recitals to this Agreement.
"Lease" has the meaning set out in Section 6.2.14.
"Legal Requirements" means all applicable laws, statutes, orders,
decrees, injunctions, licenses, permits, approvals, agreements and
regulations of any Governmental Instrumentality having jurisdiction
over the matter in question.
"Management Shareholders" mean Shuguang and Xxxxxxx XXX..
"March 1998 Agreements" has the meaning set forth in the recitals to
this Agreement.
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"Marketing and Administrative Support Agreement" means the Marketing
and Administrative Support Agreement between the JV, Grant and STOCO,
in the form as has been agreed to by the parties thereto.
"Notice of Termination Date" has the meaning set out in Section 12.1,
and the term "date of Notice of Termination" means Notice of
Termination Date.
"Person" means any individual, JV, corporation, association, joint
stock JV, partnership, joint venture, business, trust, non-incorporated
organization or other entity.
"Purchased Shares" has the meaning set out in Section 3.1.
"Renminbi" or "Rmb" means the lawful currency of China.
"Post-Closing Ownership Deed" means the Post-Closing Ownership Deed to
be entered into by and between the Shareholders, Grant and the JV in
order to acknowledge ownership of the JV following the closing of the
transactions contemplated by this Agreement, in a form reasonably
acceptable to all parties.
"SAFE" means the State Administration of Foreign Exchange Control of
China.
"SAIC" means the State Administration of Industry and Commerce of
China.
"Second Lease" has the meaning set out in Section 7.8.
"Scheduled Closing Date" has the meaning set out in Section 3.3.
"Shareholders' Losses" has the meaning given such term in Section 9.3.
"Share" or "Shares" means any share or shares representing an interest
or interests in the registered capital of the JV.
"Signing Date" means the date first written above.
"Shareholders" means the parties listed on Schedule 1.1 hereto.
"SLAB" means the State Land Administration Bureau.
"STOCO" means Xxxxxxx Company, Inc., a California corporation.
"Third Party" means any Person who is not a party to this Agreement.
"US$" or "U.S. Dollars" means the lawful currency of the United States
of America.
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1.2 Construction. The headings and titles of articles and sections used in
this Agreement, including the table of contents, are inserted for
convenience of reference only and shall be ignored in construing this
Agreement. All references to Articles, Sections, subsections, Exhibits
or Schedules refer to the corresponding Article, Section, subsection,
Exhibit or Schedule of this Agreement, unless specific reference is
made to an Article, section, subsection, exhibit, or schedule of
another document or agreement. Any reference to an agreement,
certificate, document or instrument is to the same as amended or
extended from time to time. Use of the words hereof, herein, hereto,
hereunder, and the like, are references to this Agreement. Personal
pronouns when used in this Agreement, whether in the masculine,
feminine or neuter gender, shall include all other genders, and the
singular includes the plural, and vice versa. The Schedules and
Exhibits to this Agreement are incorporated by reference into this
Agreement and form a part hereof. References to this Agreement or to
any other document, instrument or agreement shall include any and all
schedules and exhibits hereto or thereto.
ARTICLE 2 - GENERAL
2.1 Purpose. This Agreement sets forth the respective rights and
obligations of the Parties concerning (1) the purchase and sale of the
Purchased Shares by Grant from Shuguang, (2) the exchange of Grant
Shares for Exchange Shares of the JV by Grant and the Exchanging
Shareholders, and (3) the other matters as described herein.
ARTICLE 3 - PURCHASE AND EXCHANGE OF SHARES
3.1 Purchase and Sale. Shuguang hereby agrees to sell to Grant, and Grant
hereby agrees to purchase from Shuguang, on the terms and subject to
the conditions set out herein, on the Closing Date, the number of
Shares that are set out opposite Shuguang's name on Schedule 3.1
(collectively, the "Purchased Shares"). The aggregate consideration to
be paid by Grant to Shuguang for the Purchased Shares shall be the Cash
Consideration and Grant Shares set forth on Schedule 3.1. Grant's
obligation to purchase the Purchased Shares from Shuguang shall be
subject to the satisfaction on or before the Closing Date of all the
conditions to the Closing as provided in this Agreement.
3.2 Exchange of Shares. Each of the Exchanging Shareholders agrees to
exchange with Grant, and Grant agrees to exchange with such Exchanging
Shareholders, the shares of the JV owned by such Exchanging Shareholder
as set forth in Schedule 3.2 hereto, for that number of Grant Shares
set forth opposite such Exchanging Shareholders name on Schedule 3.2.
Grant's obligation to exchange shares with the Exchanging Shareholders
shall be subject to the satisfaction on or before the Closing Date of
all the conditions to the Closing as provided in this Agreement.
3.3 Closing Conditions. The obligations of the Parties to consummate the
other transactions contemplated by this Agreement in connection with
the Closing will be subject to the satisfaction of the following
conditions (and the Parties and the JV will use their best efforts to
cause all such conditions to be satisfied) on or before ninety (90)
Days after the Signing Date (the "Scheduled Closing Date"); provided,
however, that if all the Parties agree in
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writing before the expiration of such ninety (90) Day period, the
Scheduled Closing Date shall be extended to a date, as agreed by the
Parties, on or before one hundred and twenty (120) Days after the
Signing Date; provided further, however, that an election to proceed
with the Closing shall not be deemed a waiver of any breach of any
representation, warranty or covenant in this Agreement:
3.3.1 All representations and warranties of the Shareholders as set
forth in Section 6.1, and of the JV Management Shareholders set
forth in Section 6.2, and of Grant and GPI set forth in Section
6.3, shall be complete and accurate on and as of the Closing
Date, with the same effect as though such representations and
warranties had been made again as separate representations and
warranties as of the Closing Date, and each of the Shareholders
shall have delivered to Grant, and Grant and GPI shall have
delivered to the Shareholders a certificate to that effect dated
the Closing Date and executed by the duly authorized legal
representative of such Party;
3.3.2 All covenants, agreements and obligations of the Parties
contained in this Agreement shall have been complied with and
performed, and each of the Shareholders shall have delivered to
Grant, and Grant and GPI shall have delivered to the
shareholders, a certificate to that effect dated the Closing
Date and executed by the duly authorized legal representative of
each such party;
3.3.3 The Parties shall have received all consents, approvals and
Governmental Authorizations from all Persons and Governmental
Instrumentalities that are required to be obtained for the
consummation of the transactions contemplated by or described in
this Agreement, including without limitation, all the consents
and approvals set out in Section 5.1 below;
3.3.4 The Second Amended JV Articles and the Second Amended JV
Contract shall have been duly executed and delivered by all the
parties thereto, and shall be in full force and effect in form
and substance as attached hereto as Exhibit A and Exhibit B,
respectively, and all Governmental Authorizations with respect
thereto shall have been obtained as required by Section 5.1.1
below;
3.3.5 The Agreements described in Article 7 shall have been duly
executed and delivered by all parties;
3.3.6 The transactions contemplated hereby to be consummated at and
after the Closing and all actions, proceedings, instruments and
documents required to carry out this Agreement and the
transactions contemplated hereby shall have been authorized and
approved by the Board of Directors of Grant and GPI, and all
other related legal matters shall have been approved by counsel
for Grant and GPI;
3.3.7 There shall have been no material adverse change in the business
or financial condition of the JV since the Signing Date;
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3.3.8 Any and all agreements, contracts or commitments between the JV
and any other Person concerning the marketing, distribution or
licensing of the JV's products outside China, except as provided
herein, shall have been terminated;
3.3.9 [OMITTED]
3.3.10 The Lease, as amended on July 17, 1998 and approved and property
registered with SLAB, remains unamended and in full force and
effect;
3.3.11 The shareholders of the JV shall have approved or consented, in
a unanimous written consent or by resolution adopted at a duly
convened meeting, to the appointment of the Directors designated
by Grant and Shuguang to serve as members of the Board of
Directors of the JV as provided in the Amended JV Contract,
effective as of the Closing Date, and the Board of Directors
shall be reconstituted with only nominees of either Grant or
Shuguang, as contemplated in the Amended JV Articles and Amended
JV Contract;
3.3.12 The Post-Closing Ownership Deed shall have been executed and
delivered by all the Shareholders, Xxxxxxx XXX and any other
parties required to sign thereto, the Parties shall have
received all consents, approvals and Governmental Authorizations
from all Persons and Governmental Instrumentalities that are
required to be obtained for the filing and effectiveness of the
Post-Closing Ownership Deed shall have been consummated; and
3.3.13 Each Party shall have received on or before the Signing Date
certified copies of the corporate resolutions and other
documents and instruments as may be reasonably requested by the
other Parties to evidence the due authorization of and the
making and performance by such Party of this Agreement, and to
evidence the due authorization of and the making and performance
by such party of the transactions contemplated by this
Agreement.
3.3.14 The "Initial Transactions" shall have been completed and
approved by COFTEC pursuant to all documentation reasonably
required to document such approval in accordance with applicable
Chinese Law.
3.4 Closing. The closing of the purchase and sale of the Purchased Shares
and the exchange of shares with the Exchanging Shareholders (the
"Closing") shall occur on the tenth (10th) Business Day next succeeding
the satisfaction of all the conditions set forth in Section 3.3 above
(any of which may be waived in writing by a party, in such party's sole
and absolute discretion), or at such other time or place as to which
all the Parties shall agree; provided, however, if such conditions have
not been satisfied and the Closing has not occurred on or before the
Scheduled Closing Date, Grant or the Shareholders (collectively) may
terminate this Agreement and its obligations hereunder, effective upon
written notice to the JV and the other parties. The date on which the
Closing occurs is referred to herein as the "Closing Date." At the
Closing:
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3.4.1 Grant shall (1) pay to Shuguang for the Purchased Shares to be
purchased from them the Cash Consideration (less the Escrowed
Funds) in immediately available funds by wire transfer on the
Closing Date and shall issue stock certificates evidencing the
Grant Shares set forth on Schedule 3.1, and (2) issue to the
Exchanging Shareholders stock certificates evidencing the Grant
Shares issued in consideration for the exchange of shares, in
the names and amounts set forth on Schedule 3.2;
3.4.2 Shuguang shall assign, transfer, convey and delivery to Grant
the Purchased Shares, and the Exchanging Shareholders each shall
assign, transfer, convey and deliver to Grant the Exchanged
Shares, in each case free and clear of all liens, claims,
charges, security interests, agreements, options, pledges and
other interests and encumbrances of any nature, other than those
set forth in the Amended JV Contract and the Amended JV
Articles. The Purchased Shares and Exchanged Shares shall be
certificated, and the transfer and acquisition shall be duly
registered in the transfer records of the JV. The JV shall be
responsible for any taxes and duties imposed in connection with
such transfer, assignment, conveyance, delivery, certification
and registration conveyed by each of them.
3.4.3 All other documents that are required to be executed or
delivered and all actions that are required to be taken to give
effect to the transactions contemplated by this Agreement, the
Amended JV Contract and the Amended JV Articles shall be
executed, delivered and taken, as applicable.
3.5 Resulting Capital Structure. After giving effect to the closing of the
transactions contemplated by this Agreement, all the registered capital
of the JV will be subscribed to, fully paid up, and held by the
Persons, and in the percentages, as set out on Schedule 3.5. If, as a
result of any appraisal or other Legal Requirements or otherwise,
Grant's interest in the Shares and registered capital of the JV would
be less than the percentage set out opposite its name on Schedule 3.5,
the Shareholders and JV shall cause additional Shares to be transferred
or issued to Grant, for no additional consideration, and take such
other actions as are necessary or desirable, such that, after giving
effect thereto, Grant's interest in the Shares and registered capital
of the JV shall equal the percentage set out opposite its name on
Schedule 3.5.
ARTICLE 4 - REGISTRATION RIGHTS
Grant and the Exchanging Shareholders agree to the terms and provisions
governing registration rights for the Grant Shares as set forth in Exhibit F
hereto.
ARTICLE 5 - COVENANTS
5.1 Consents and Authorizations. Promptly after the Signing Date, each of
the Parties will use its commercially reasonable best efforts promptly
to apply for and otherwise request and to obtain the necessary
consents, approvals and Governmental Authorizations of all Persons and
Governmental Instrumentalities required to be obtained, and file or
make all reports,
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registrations, notices and publications required by Legal Requirements,
to consummate the transactions described in this Agreement, including
without limitation:
5.1.1 the customary consent and approval of COFTEC, and any and all
other appropriate Governmental Instrumentalities to (i) enable
the consummation of the purchase and sale of the Purchased
Shares and exchange of the Shares with the Exchanging
Shareholders as contemplated by this Agreement and (ii)
otherwise amend and restate the JV Articles as set forth in the
form and substance attached to this Agreement as Exhibit A, and
amend and restate the JV Contract as set forth in the form and
substance attached to this Agreement as Exhibit B (collectively,
the "COFTEC Approval"); and Grant, the JV and the Shareholders
will cooperate with each other and provide such assistance as is
reasonably requested by the others in connection with the
request for the COFTEC Approval;
5.1.2 as soon as practicable following the Closing, the issuance by
SAIC of a new (or, if allowed by Legal Requirements, amended)
Business License to the JV to reflect the changes to the
registered capital of the JV, the terms and conditions of the
Amended JV Contract, and the provisions of the Amended JV
Articles, as contemplated by this Agreement;
5.1.3 all other consents and approvals and certificates that are set
out on Schedule 5.1.3;
5.1.4 the consent of all shareholders of the JV and the waiver of all
preemptive rights and rights of first refusal or otherwise by
all such shareholders to the transfer and sale of the Purchased
Shares by the Shareholders and the exchange of the Exchange
Shares for Grant Shares, as may be required under the JV
Articles, the JV Contract, any other agreement, or Legal
Requirements;
5.1.5 [OMITTED]; and
5.1.6 the consents and approvals and share transfers required with
respect to the Post-Closing Ownership Deed
5.2 Conduct of Business Pending Closing. On and after the Signing Date and
until the Closing, the JV will engage solely in the business of
developing, manufacturing and selling drill pipe and related products,
and will conduct its business only in the ordinary course and in a good
and diligent manner consistent with sound business practices and its
past practices, in compliance with all Legal Requirements and
Governmental Authorizations, and otherwise in accordance with the
obligations of this Agreement; and except as otherwise expressly
permitted or contemplated by this Agreement or with the prior written
consent of Grant (or approved by a JV Board action in which a Grant
Director consented), the JV will not, and the Shareholders will not
permit the JV to, do any of the following:
5.2.1 Omitted;
5.2.2 Omitted.
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5.2.3 fail to comply with any applicable Legal Requirement or comply
with or maintain any Governmental Authorization applicable to
the JV, including without limitation, the terms and conditions
of the JV's then-existing COFTEC approval, Business License and
any other Legal Requirement or Governmental Authorization
applicable to the JV, or take any action or fail to act in a
manner that would cause the loss or non-renewal of any right,
privilege, license, registration approval, consent or other
Governmental Authorization necessary in connection with the
conduct of the JV's business;
5.2.4 approve or permit (i) any sale, exchange, lease, abandonment,
mortgage, pledge, transfer or other disposition of all or any
substantial part of the respective assets or businesses or the
JV, (ii) any waiver or release of any rights of material value
relating to the assets of the JV, or (iii) the formation,
establishment, ownership or existence of any Affiliate, branch
or representative office of the JV or in which the JV holds an
interest;
5.2.5 create, assume, incur or guarantee any indebtedness, lend any
money or otherwise pledge the credit of the JV, or enter into
any agreement or incur any obligation the terms of which would
be violated by the consummation of the transactions contemplated
by this Agreement;
5.2.6 engage in or enter into any material transaction of any nature
not expressly permitted or contemplated by this Agreement,
engage in or enter into any transaction with any Shareholder or
Affiliate thereof not permitted expressly or contemplated by
this Agreement, or incur or commit to any expenditures other
than as agreed in this Agreement, acquire or agree to acquire by
merging or consolidating with, or acquire or agree to acquire by
purchasing a substantial portion of the assets of, or in any
manner, any Person, or waive any right or cancel any contract,
debt or claim;
5.2.7 declare or pay any dividend on or make any other distribution in
respect of any registered capital or other equity of the JV or
other ownership interests (except for a dividend distribution in
an aggregate amount not to exceed $1,080,000 (thirty-five
percent (35%) of the JV's after-tax net profits for the year
ended December 31, 2001), provided that such dividend complies
with all Legal Requirements and Grant is given written notice
prior to its payment); split, combine or reclassify any of its
registered capital or other equity or other ownership interests
(except, in the event the changes to the registered capital
accounts of certain Shareholders that are contemplated by the
Initial Transactions could be deemed to be a "combination" or
"reclassification" transaction, then those changes), or issue or
authorize the issuance of any other securities in respect of, in
lieu of or in substitution for, shares of its registered capital
or other equity or other ownership interests; purchase, redeem
or otherwise acquire any shares of its registered capital or
other equity or other ownership interests, change the
nominal/par value of any Share, or take any preliminary action
with respect to the foregoing; or
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5.2.8 take any other action or approve or undertake any other matter
set forth in Article 24 or Article 25 of the First Amended JV
Contract except in accordance with the approval requirements
contained therein, which provisions are deemed to be
incorporated into this Agreement and effective for purposes
hereof by this reference, without regard to the effectiveness of
the First Amended JV Contract.
5.3 Compliance with Laws. Neither the JV nor any of its officers,
directors, employees, agents, representatives or similar Persons, shall
authorize, engage in or allow to occur any conduct or activity with
respect to the JV or any of the transactions contemplated by this
Agreement that would violate any applicable Legal Requirement.
5.4 Transfer of Shares. Except for any transactions required for the
execution and delivery of the Post-Closing Ownership Deed (including
consummation of the Initial Transactions), none of the Shareholders, or
the JV will sell, assign, exchange, gift, pledge, encumber, transfer or
otherwise dispose of, directly or indirectly, any beneficial or other
interest in the JV, including, without limitation, any voting rights
with respect thereto or rights to distributions thereon, or enter into
any agreement to do so, to or with any Person.
5.5 Cooperation. Prior to the Closing, the JV will (i) use its diligent and
best efforts to perform and fulfill all conditions and obligations on
its part to be performed and fulfilled under this Agreement, to the end
that the transactions described in this Agreement shall be consummated
as soon as practicable; and (ii) keep Grant advised of all material
developments relevant to or affecting the JV and the consummation of
the transactions contemplated hereby. The JV will allow Grant to make a
full investigation of the business, assets and financial condition of
the JV, during regular business hours and upon reasonable notice, and
will furnish to Grant and Grant's representatives and agents access to
such of its books, records and information as Grant or its
representatives or agents may request in connection with the review and
investigation by or on behalf of Grant of the business, assets and
financial condition of the JV.
5.6 [OMITTED] -
5.7 Further Implementation. From time to time after the Signing Date, the
parties hereto shall execute and deliver, or cause to be executed and
delivered, such additional instruments, certificates or documents, and
take all actions, as a party may reasonably request, for the purposes
of implementing or effectuating the provisions of this Agreement.
5.8 Post Closing Ownership Deed. The Parties acknowledge and agree that it
is a condition to the Closing that immediately before giving effect to
the transactions contemplated by this Agreement to occur at the
Closing, the Initial Transactions shall have been consummated and the
Shareholders will own the issued and outstanding shares of the JV in
the amounts set out in Schedules 6.2.2, free and clear of all liens,
claims, charges, security interests, agreements, options, pledges and
other encumbrances of any nature, other than the transfer restrictions
set forth in the JV Contract and the JV Articles. Shuguang covenants
and agrees that the Initial Transactions required for Shuguang to
obtain the ownership of the JV as set forth in Schedule 6.2.2 shall be
consummated prior to the Closing in a manner not likely to cause a
delay in the
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consummation of the transactions contemplated hereby to occur at the
Closing by the Scheduled Closing Date.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES
6.1 Shareholders. Each Shareholder, severally and not jointly, represents
and warrants to Grant and GPI with respect to such shareholder only as
follows:
6.1.1 In the case of Shuguang, it is a Chinese collectively owned
enterprise, is not a state-owned enterprise, and has all
requisite power and authority to own its property and to carry
on its business as it is now being conducted as it relates to
Shuguang's investment and participation in the JV and the
transactions contemplated by this Agreement. In the case of QSI,
it is a corporation duly organized and validly existing under
the laws of the State of Texas, United States of America, and
has all requisite corporate power and authority to own its
property and to carry on its business as it is now being
conducted. In the case of STOCO, it is a corporation duly
organized and validly existing under the laws of the State of
California, United States of America, and has all requisite
corporate power and authority to own its property and to carry
on its business as it is now being conducted. In the case of
WAI, it is a corporation duly organized and validly existing
under the laws of the State of Texas, United States of America,
and has all requisite corporate power and authority to own its
property and to carry on its business as it is now being
conducted.
6.1.2 It has all requisite power and authority (to the extent it is a
party) to enter into, execute, deliver and carry out the
applicable terms of this Agreement, the Amended JV Contract and
the Amended JV Articles (in each case only to the extent such
Shareholder is a party), and to incur the obligations provided
for herein and therein, all of which, in the case of each
Shareholder that is not an individual, have been duly authorized
by all proper and necessary corporate or governmental, as
applicable, action and are not in violation of its Articles of
Association, charter or other governing document(s).
6.1.3 No consent, authorization or approval of, filing with, notice
to, or exemption by, any stockholder, any Person, or any
Governmental Instrumentality is required to authorize or is
required in connection with the execution, delivery and
performance of the applicable provisions of this Agreement, the
Amended JV Contract or the Amended JV Articles (to the extent
such Shareholder is a party), or is required as a condition to
the validity or enforceability of this Agreement or any of such
other aforementioned agreements (to the extent such Shareholder
is a party), except for (i) those that have been obtained, made
or given and (ii) those that are contemplated to be obtained
after the Signing Date as a condition to the Closing as
described in Section 5.1 and as set out on Schedule 5.1.3;
6.1.4 This Agreement, the Amended JV Contract and the Amended JV
Articles (to the extent such Shareholder is a party), if and
when executed and delivered by all the
12
parties thereto and approved by the applicable Governmental
Instrumentalities of China as required by this Agreement as a
condition of the Closing, constitute the valid and legally
binding obligation of such Shareholder (to the extent such
Shareholders is a party), enforceable in accordance with its
respective terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity.
6.1.5 The execution, delivery and carrying out of the respective
applicable terms of this Agreement, the Amended JV Contract and
the Amended JV Articles, in each case by the Shareholder to the
extent it is party, will not constitute a default under,
conflict with, or require any consent under (other than consents
which have been or before the Closing will be obtained as
contemplated herein), any mortgage, indenture, contract,
agreement, judgment, decree or order to which such Shareholder
is a party or by which it or its assets is bound, which
defaults, conflicts and consents, if not obtained, would have a
material adverse effect on the business of the JV or the
transactions contemplated hereby or thereby.
6.1.6 There is no litigation, action, arbitration, suit, investigation
or proceeding pending or, to the best knowledge and belief of
such Shareholder, threatened by or against it, any of its
Affiliates or any of its or their respective properties, or, to
the best knowledge of such Shareholder, by or against the JV,
any of the JV's Affiliates or any of their respective
properties, of or before any arbitrator, Governmental
Instrumentality, or in any court, (i) with respect to this
Agreement, or any of the transactions contemplated hereby or
thereby, or (ii) which, if adversely determined, would have a
material adverse effect on the ability of the parties hereto or
thereto to consummate the transactions contemplated herein or
therein. .
6.1.7 Upon the purchase of the Purchased Shares sold by such
Shareholder by Grant or the exchange of Exchanged Shares by such
Shareholder as contemplated by this Agreement, and the payment
by Grant of the full amount of the Purchase Price and Exchange
Consideration as provided herein, Grant will obtain good and
valid title to all the Purchased Shares or Exchange Shares of
such Shareholder, free and clear of any and all liens, claims,
charges, security interests, agreements, options, pledges and
other interests and encumbrances of any nature (other than the
transfer restrictions created by the Amended JV Contract and the
Amended JV Articles). With respect to Shuguang only, none of the
Shares being acquired by it in the Initial Transactions are
being the Shares being conveyedto Grant pursuant to this
Agreement, and such Shares being conveyed to Grant are not
state-owned assets..
6.1.8 Except for arrangements for which neither Grant not the JV nor
any Affiliate thereof will have any liability, such Shareholder
is not obligated to pay or receive any finder's or broker's fee,
commission, or other fee or compensation to any Person as a
result of, with respect to, or in connection with the
transactions contemplated by this Agreement. Each Shareholder
has reviewed the Purchase Consideration and
13
Exchange Consideration and acknowledges and agrees to the
amounts being received by such Shareholders is the appropriate
and correct allocation.
6.1.9 Such Shareholder makes the representations and warranties set
forth on Exhibit F hereto.
6.2 The Management Shareholders. Each of the Management Shareholders,
severally but not jointly represent and warrant to Grant as follows (it
being understood that Xxxxxxx IRA's representations and warranties are
being made only to the best of their knowledge in their context as not
being a day-to-day manager of the JV's business and operations):
6.2.1 The JV is a Sino-foreign equity joint venture limited liability
JV duly organized and validly existing under the laws of China,
and has all requisite corporate power and authority to own and
operate its property and to carry on its business as it is
currently being conducted and proposed to be conducted as
contemplated herein and in the other agreements by which it is
bound.
6.2.2 Immediately before giving effect to the transactions
contemplated hereby to occur at the Closing but after completion
of the Initial Transactions, the JV's registered capital will
consist of the "Total Amount" set out in part (b) of Schedule
6.2.2, divided and held by the Shareholders and Grant as set out
therein. All such Shares are validly issued and are fully paid
and nonassessable and were not issued in violation of any
preemptive rights of any Person (or such preemptive rights have
been waived). Immediately before giving effect to the
transactions contemplated hereby to occur at the Closing but
after completion of the Initial Transactions, the Shareholders
and Grant will own all of the issued and outstanding shares of
the JV, in the amounts set out in part (b) of Schedule 6.2.2,
free and clear of all liens, claims, charges, security
interests, agreements, options, pledges and other encumbrances
of any nature, other than the transfer restrictions set forth in
the JV Contract and the JV Articles. Except as provided herein,
the JV has no other authorized, issued or outstanding shares of
registered capital or other equity or other securities, and
there are no outstanding options, warrants, convertible
securities, calls, rights, commitments, preemptive rights,
agreements, arrangements or understandings of any character
obligating the JV or any of its respective shareholders (i) to
issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of registered capital or other equity of
the JV or any securities or obligations convertible into or
exchangeable for such shares or (ii) to issue, extend or enter
into any such option, warrant, convertible security, call,
right, commitment, or preemptive right, except as set forth in
the JV Contract and the JV Articles.
6.2.3 Except as could not have a material adverse affect on the JV and
could be remedied in the ordinary course of business without
undue effort or expense on the part of the JV or Grant (i) the
JV is not in default in the performance, observance or
fulfillment of any of the terms or conditions of the JV Contract
or the JV Articles, and (ii) the JV is in compliance with the
terms of its current COFTEC approval and all other Legal
14
Requirements issued or promulgated by COFTEC or any other
Governmental Instrumentalities.
6.2.4 Omitted.
6.2.5 OMITTED.
6.2.6 Except as could not have a material adverse affect on the JV and
could be remedied in the ordinary course of business without
undue effort or expense on the part of the JV or Grant, the
execution and delivery of this Agreement and consummation of the
transactions contemplated hereby (i) do not and will not with or
without the giving of notice or the passage of time or both,
violate or conflict with or result in a breach or termination of
any provision of, or constitute a default under, or accelerate
or permit the acceleration of performance required by the terms
of, or result in the creation of any lien upon any of the assets
or properties of the JV, or give rise to any liability or
obligation of the JV under, any agreement, mortgage, deed of
trust, indenture, license, permit or any other agreement or
instrument or any order, judgment, decree, statute, rule,
regulation or any other restriction of any kind or description
to which the JV or any of its assets or properties may be bound;
and (ii) will not terminate or result in the termination of any
agreement or instrument, or in any way affect or violate the
terms and conditions of, or result in the cancellation,
modification, revocation or suspension or, any rights of the JV
under any such agreement or instrument.
6.2.7 This Agreement and other agreements contemplated by the
transactions hereby if and when executed and delivered by all
the parties thereto, each constitutes, under the laws of all
applicable jurisdictions, the valid and legally binding
obligation of the JV enforceable in accordance with its
respective terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity.
6.2.8 There are no rights of any kind of any other person or entity to
purchase or acquire any of the stock, shares or other interest
of or in the JV.
6.2.9 This Agreement (including the Schedules and Exhibits to this
Agreement) and any document, statement, certificate or schedule
furnished or to be furnished to Grant by or on behalf of the JV
pursuant hereto, or in connection with the transactions
contemplated hereby, taken as a whole, do not and (in the case
of any document, statement, certificate or schedule to be
furnished) will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements contained therein not misleading. The JV has fully
and fairly disclosed to Grant all facts material to the
business, operations, prospects and condition (financial and
otherwise), and liabilities, assets and capitalization of the
JV.
6.2.10 The JV is not in breach or default of any agreement, the breach
or default of which could have a material adverse effect upon
the JV. Except as set forth on Schedule
15
6.1.10, there is no litigation, action, suit, investigation or
proceeding pending or, to the best knowledge and belief of the
JV, threatened against the JV, any of its Affiliates or any of
their respective properties, of or before any arbitrator,
Governmental Instrumentality, or in any court, (i) with respect
to this Agreement or any other agreement described herein or
therein, or any of the transactions contemplated hereby or
thereby, or (ii) which, if adversely determined, would have a
material adverse effect on the ability of the parties hereto or
thereto to perform their respective obligations hereunder and
thereunder or to consummate the transactions contemplated herein
or therein.
6.2.11 The JV has no obligation to pay any dividend or make any other
distribution in respect of any stock or other interest in the
JV, except for the dividend distribution contemplated to be made
as described in Section 5.2.7.
6.2.12 Omitted.
6.2.13 The JV has provided Grant with complete and accurate copies of
the audited balance sheet and statements of income as of and for
the fiscal years ended December 31, 2000 and unaudited balance
sheets and statements of income for the year ended December 31,
2001. These financial statements have been prepared on an
accrual basis in accordance with generally accepted Chinese
accounting principles on a consistent basis throughout the
periods covered thereby, present fairly the financial condition
of the JV as of such dates and the results of operations for
such periods, and are correct and complete and consistent with
the books and records of the JV. The JV does not and will not
have any liabilities or obligations of any kind, whether
accrued, absolute, contingent or otherwise (and including
unasserted claims), except for those liabilities that are fully
disclosed or reserved against on such financial statements, and
except for liabilities for the purchase of raw materials and
equipment and for payroll and other expenses to be incurred by
the JV arising after December 31, 2001 pursuant to the JV's
regular conduct of business which are not required to be accrued
for in accordance with accrual basis generally accepted Chinese
accounting principles. Since December 31, 2001, there has been
no material adverse change in the business or prospects of the
JV or no event that could reasonably be expected to result or
cause such material adverse change. All of the assets of the JV
are included in the December 31, 2001 balance sheet, subject
only to changes in inventory and other working capital items and
immaterial changes to property and equipment and the JV has good
title to all of the assets needed to operate its business except
as would not materially affect its business.
6.2.14 The lease agreement with Shuguang dated August 18, 1995, as
amended on July 17, 1998, for the JV's facilities (the "Lease")
has been properly registered with the Land Administration Bureau
of Jiangsu City in accordance with Legal Requirements and
remains in full force and effect.
6.2.15 Except as could not have a material adverse affect on the JV and
which can be remedied in the ordinary course of business without
undue effort and expense by the
16
JV there has been no action or failure to act or comply with any
of the terms of any approval, permit, license, consent,
registration or Governmental Authorization by the JV or any of
the Shareholders that would cause the loss or non-renewal of any
such approval, permit, license, consent, registration or
Governmental Authorization or result in a material fine or
assessment against the JV. The JV has all Governmental
Authorizations material for it to run its business.
6.2.16 Schedule 6.2.16 sets forth a true and complete list of all
contracts, courses of dealing, agreements, undertakings,
instruments, plans, obligations, commitments and other documents
(collectively, the "Contracts") to which the JV is a party or by
which any of its assets or properties is bound (i) involving the
payment of total consideration in excess of US$200,000 (or the
equivalent amount in other currency) and having a term greater
than one year, except for contracts for the sale of drill pipe
and other products of the JV in the ordinary course of business;
(ii) with any Shareholder or any Affiliate of the JV or any
Affiliate of any Shareholder; (iii) relating to the distribution
of products outside China (that are not terminated at the
closing hereby); (iv) restricting the rights of the JV to
conduct or engage in any business or activity; (v) relating to
the borrowing of money or granting a lien or encumbrance on any
assets of the JV; or (vi) that otherwise are material to the JV.
6.2.17 The JV has complied in all respects and is in compliance with
all laws, rules, regulations, ordinances, orders, decrees,
writs, injunctions, permits, licenses, approvals, Governmental
Authorizations of China and other Chinese governmental
restrictions applicable to its respective assets, properties and
business, including, without limitation, all applicable labor,
welfare, pension, and environmental laws, except where the
failure so to comply would not have a material adverse effect on
the JV or its business or financial condition.
6.2.18 The JV has filed, within the time required by all Legal
Requirements, all returns, statements and reports with respect
to import, customs, income, property, sales, value added, use,
withholding, payroll, employment and other taxes, duties or
excises, and has paid all taxes and similar amounts due and
owing by it, except where the failure so to file or pay would
not have a material adverse effect on the JV or its business or
financial condition, and there are no open, unresolved or
outstanding audits or assessments with respect to any tax, duty
or excise due by the JV or for which the JV may be liable, and
the JV has not received any notice of any such audit or
assessment.
6.2.19 OMITTED.
6.2.20 OMITTED.
6.2.21 OMITTED.
6.2.22 OMITTED.
17
6.3 Grant. As of the Signing Date and the Closing Date, GPI and Grant,
jointly and severally, represent and warrant to the Shareholders as
follows:
6.3.1 Grant is a limited liability JV duly organized, validly existing
and in good standing under the laws of its jurisdiction of
formation, and has all requisite corporate power and authority
to own its property and to carry on its business as it is now
being conducted. GPI is a corporation duly organized, validly
existing and in good standing in the state of Delaware. GPI's
common stock is publicly traded on the New York Stock Exchange
under the symbol "GRP".
6.3.2 Each of Grant and GPI has full corporate power and authority to
enter into, execute, deliver and carry out the terms of this
Agreement and to incur the obligations provided for herein, all
of which have been duly authorized by all proper and necessary
corporate action and are not in violation of its Articles of
Association. The issuance of the GPI Shares pursuant to the
terms and conditions hereof have been authorized by all required
corporate action, and when issued in accordance with the terms
hereof, shall represent validly issued non assessable shares of
GPI listed for trading on the New York Stock Exchange. GPI has
no other classes or series of capital stock issued other than
its common stock, $.01 par value. GPI and Grant acknowledge and
agree to the registration obligations set forth in Exhibit G.
6.3.3 No consent, authorization or approval of, filing with, notice
to, or exemption by, any stockholder, any Person, or any
Governmental Instrumentality of any applicable jurisdiction is
required to authorize or is required in connection with the
execution, delivery and performance of this Agreement by Grant
or GPI or is required as a condition to the validity or
enforceability of Grant's or GPI's obligations under this
Agreement, except for those which have been duly obtained, made
or given and except for those that are specifically contemplated
in this Agreement to be obtained as a condition to the Closing.
6.3.4 This Agreement, the Amended JV Contract, the Amended JV Articles
to which it is a party, if and when executed and delivered by
all the parties thereto, each constitutes the valid and legally
binding obligation of Grant and GPI, as the case may be,
enforceable in accordance with its respective terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally or by general
principles of equity.
6.3.5 The execution, delivery and carrying out of the respective terms
by Grant and GPI, as the case may be, of this Agreement, the
Amended JV Contract and the Amended JV Articles to which it is a
party, will not constitute a default under, conflict with, or
require any consent under (other than consents which have been
or before the Closing will be obtained as contemplated herein),
any mortgage, indenture, contract, agreement, judgment, decree
or order to which Grant or GPI is a party or by which it or its
assets is bound, which defaults, conflicts and consents, if not
obtained, would have a material adverse effect on the ability of
Grant or GPI to consummate the transactions contemplated hereby
or thereby.
18
6.3.6 There is no litigation, action, arbitration, suit, investigation
or proceeding pending or, to the best knowledge and belief of
Grant or GPI, threatened by or against it, any of its Affiliates
or any of its or their respective properties, of or before any
arbitrator, Governmental Instrumentality, or in any court, (i)
with respect to this Agreement, or any of the transactions
contemplated hereby or thereby, or (ii) which, if adversely
determined, would have a material adverse effect on the ability
of the parties hereto or thereto to consummate the transactions
contemplated herein or therein.
6.3.7 GPI has provided to the Shareholders its Annual Report on Form
10-K for the year ended December 31, 2000, and its Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2001, June
30, 2001 and September 30, 2001 (such documents collectively
referred to herein as the "SEC Documents") and a copy of its
press release to the public summarizing its unaudited financial
results for the year ended December 31, 2001. Each of the
Shareholders also was provided prior notice of, and an
opportunity to participate in, GPI's conference call held on
February 6, 2002. As of their respective dates, the SEC
Documents complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the
Commission promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. As of the respective date of
filing with the Commission, the consolidated financial
statements of Grant Prideco, Inc. included in the SEC Documents
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations
of the Commission with respect thereto, were prepared in
accordance with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes
thereto) and fairly presented the consolidated financial
position of Grant Prideco, Inc. and its consolidated
subsidiaries as of the dates of such financial statements and
the consolidated results of their operations and cash flows for
the periods then ended. Since December 31, 2001, other than as
discussed in the SEC Documents or the press release or in the
February 6, 2002 conference call, there has been no material
adverse change in the business of GPI and its subsidiaries,
taken as a whole. GPI agrees to notify the Shareholders of any
filings it makes with the Securities and Exchange Commission
during the period between the Signing Date and the Closing Date.
Grant has entered into a joint venture with Tianjin Pipe Corporation ("TPCO")
for the manufacture and sale of upset-to-grade drill pipe. Pursuant to the joint
venture documents entered into with TPCO, TPCO agreed to a non-compete agreement
for the manufacture of finished drill pipe as set forth in Exhibit G hereto. In
the event of a violation of this non-compete by TPCO, Grant agrees upon request
of the JV to enforce at Grant's sole cost and expense the provisions of this
non-compete. Grant also agrees not to amend the provisions of this non-compete
for the manufacture of finished drill pipe in any material fashion without the
consent of the JV.
19
ARTICLE 7 - OTHER AGREEMENTS
7.1 Execution of Agreements. Each of Grant, the JV and STOCO agree to
execute and deliver on the Closing Date the Marketing and
Administrative Support Agreement. Each of Xxxxx, XX and STOCO, each
acknowledge and agree that effective upon the closing of the
transactions contemplated herein, each of the (1) Export Distribution
Agreement dated March 13, 1998, (2) Import Distribution Agreement dated
March 13, 1998, and (3) any distribution or other sales arrangements
between STOCO and the JV (such agreements in (1), (2) and (3) referred
to as the 'Terminated Agreements") are hereby terminated upon the
closing of the transactions contemplated hereunder and that all
obligations under such Terminated Agreements are hereinafter released,
terminated and forever discharged without further obligation or
liability. Grant also agrees to amend (and execute such amendment of
the closing) the H-Series License to eliminate the requirement for the
payment of royalties.
7.2 Joinder Payments. In connection with Grant becoming a majority owner of
the JV pursuant to the terms of this Agreement, Grant has insisted on
the retention and full-time commitments of each of the existing
Chairman of the Board, Xu Xishi, and General Manager, Xxxxx Xxxxxx. In
connection with their full-time commitments to the Joint Venture and to
guerdon such individuals for such dedication to the JV and to
compensate for their resignation from governmental positions, on the
Closing Date, Grant has elected to pay a joinder payment of $50,000 to
each such individual.
7.3 Stock Options. In connection with Grant becoming a majority owner of
the JV pursuant to the terms of this Agreement, Grant has insisted on
the retention and continuing commitments and involvement of each of Xu
Xishi, Xxxxx Xxxxxx and Xxxx Xx. On the Closing Date, Grant has elected
to issue to each of these individuals options to purchase 10,000 shares
of Grant Prideco common stock with an exercise price equal to the fair
market value of Grant's Common Stock on the Closing Date. Such options
shall not be exercisable and subject to vesting for a period of three
years from the Closing Date.
7.4 Tool Joint Facility. Shuguang hereby Grants to JSG the exclusive
option, exercisable within 12 months from the Closing Date, to purchase
the Tool Joint Facility, operation and business owned by Shuguang,
which supplies the JV with finished tool joints, for a purchase price
to be negotiated in good faith by the parties. Such purchase shall be
pursuant to an agreement governing the purchase of a business,
including customary representations and warranties. Until such time as
the Tool Joint Facility is purchased by JSG, JSG agrees to continue to
purchase tool joints from the Tool Joint Facility unless it can obtain
tool joints of substantially comparable quality at a lower price
(taking into account delivery, order size and shipping costs) from
another third party supplier.
7.5 Shareholder Release. Each of the Shareholders agrees to the terms and
provisions of the release provisions contained in Exhibit I hereto.
20
7.6 Purchases of PEDP. Grant and Shuguang agree that the JV may continue to
purchase upset-to-grade pipe and other products through Mitsui, at
prices and upon terms that the JV determines are appropriate and
reasonable. Shuguang agrees to allow the JV to purchase plain end pipe
from the Grant - TPCO joint venture assuming acceptable quality and
price.
7.7 Registration Rights. The parties agree to the terms and conditions
contained in Exhibit J relating to registration of the Grant Shares.
7.8 Second Lease Agreement. Shuguang agrees to execute a lease agreement,
with terms substantially similar to the Lease, governing the other
properties currently leased from Shuguang to the JV and to properly
record and register this lease with SLAB.
ARTICLE 8 -
NON COMPETITION
Each of the Shareholders agree to the terms and conditions of the
Non-Compete contained in Exhibit I hereto.
ARTICLE 9 - INDEMNIFICATION
9.1 Survival. All representations, warranties, covenants, and agreements
made by any Party in this Agreement, or in any schedule, certificate or
document delivered pursuant hereto, shall survive the Closing, for a
period of 18 months thereafter in the case of such representations and
warranties (other than those set out in paragraphs 6.1.1, 6.1.2, 6.1.4,
6.1.7, and 6.1.8 and paragraphs 6.3.1 through 6.3.5), and indefinitely
in the case of the representations and warranties set out in Section
6.1.1, 6.1.2, 6.1.4, 6.1.7 and 6.1.8 and paragraphs 6.3.1 through 6.3.5
and in the case of all such covenants and agreements, and shall not be
affected or extinguished by the Closing or any investigation made by or
on behalf of any Party hereto.
9.2 Grant's Losses.
9.2.1 Shareholders. Each Shareholder, severally and not jointly,
agrees to indemnify Grant or the JV (as the case may be) for any
Grant Losses suffered, sustained, incurred, or required to be
paid by Grant (or the JV) or any of its Affiliates by reason of
(i) any representation or warranty made by such Shareholder
being untrue or incorrect in any material respect when made or
(ii) failure to observe any of its covenants and agreements.
9.2.2 JV and Management Shareholders. Each Management Shareholder to
this Agreement, severally and not jointly, agree to indemnify
Grant and save and hold Grant harmless from, against, for, and
in respect of any and all damages (including, without
limitation, amounts paid in settlement of any claims), losses,
obligations, liabilities, claims, deficiencies, costs, and
expenses, including, without limitation, reasonable attorneys'
fees (hereinafter referred to collectively as "Grant's Losses")
suffered,
21
sustained, incurred, or required to be paid by Grant or any of
its Affiliates by reason of (i) any representation or warranty
made in Article 6.2 in this Agreement being untrue or incorrect
in any material respect when made; or (ii) any breach by the JV
of, or failure by the JV to observe or perform, any of its
covenants or agreements set forth in this Agreement. Shuguang
also agrees to indemnify Grant (or the JV) with respect to any
warranty claims made or threatened by a customer on or before
March 31, 2003 relating to products sold prior to the Closing
Date and for any additional penalties or fines relating to the
recent Chinese custom fines and penalties and allegations. With
respect to indemnification obligations for breaches of
representations and warranties contained in Article 6.2, each
Management Shareholder shall only be liable for that portion of
such liability that such Management Stockholders ownership of
the JV immediately prior to the Closing bears to all ownership
of the JV by the Management Stockholders immediately prior to
the Closing.
9.2.3 Limitation on Liability. In no event shall a Shareholder's,
including a Management Shareholder's, liability under this
Article 9 exceed the consideration to be received for the Shares
purchased or acquired upon exchange (utilizing a $9.00 per share
value of the GPI stock).
9.3 Shareholders' Losses. Each of Grant and GPI agrees to indemnify the
Shareholders and the JV and save and hold the Shareholders and the JV
harmless from, against, for, and in respect of any and all damages
(including, without limitation, amounts paid in settlement of any
claims), losses, obligations, liabilities, claims, deficiencies, costs,
and expenses, including, without limitation, reasonable attorneys' fees
(hereinafter referred to collectively as "Shareholders' Losses")
suffered, sustained, incurred, or required to be paid by the
Shareholders or any of its Affiliates by reason of (i) any
representation or warranty made by Grant or GPI in this Agreement being
untrue or incorrect in any material respect when made; or (ii) any
breach by Grant or GPI of or failure by Grant or GPI to observe or
perform any of its covenants and agreements set forth in this
Agreement. In no event shall the aggregate liability of Grant or GPI
hereunder exceed the amount of the Purchase Price (utilizing a $9.00
value of the GPI stock).
9.4 Notice of Loss. Notwithstanding anything herein contained, a Party
shall not have any liability under the indemnity provisions of this
Agreement with respect to a particular matter unless a notice setting
forth in reasonable detail the claim that is asserted has been given to
the Indemnifying Party (hereafter defined), and, in addition, if such
matter arises out of a suit, action, investigation, claim, or
proceeding involving a Person who is not a Party, such notice is given
promptly after the Indemnified Party (hereafter defined) shall have
been given notice of the commencement of such suit, action,
investigation, or proceeding. With respect to Grant's Losses, the JV
(until after the Closing) and the other Parties to the Agreement other
than Grant shall be the Indemnifying Party and Grant shall be the
Indemnified Party. With respect to the Shareholders Losses, Grant shall
be the Indemnifying Party and the Shareholders and the JV shall be the
Indemnified Party.
22
9.5 Right to Defend. Upon receipt of notice of any suit, action,
investigation, claim, or proceeding involving a Person who is not a
Party for which indemnification might be claimed by an Indemnified
Party, the Indemnifying Party shall be entitled promptly to defend,
contest, or otherwise protect against such suit, action, investigation,
claim, or proceeding at the Indemnifying Party's own cost and expense.
The Indemnified Party shall have the right, but not the obligation, to
participate at its own expense in a defense thereof by counsel of its
own choosing, and shall have the right to approve counsel selected by
the Indemnifying Party and the right to approve the settlement of any
matter that does not include as a term and condition thereof the
unconditional release of the Indemnified Party. In the event the
Indemnifying Party shall fail to defend, contest, or otherwise protect
in a timely manner against any such suit, action, investigation, claim,
or proceeding, the Indemnified Party shall have the right, but not the
obligation, to defend, contest, or otherwise protect against the same
and make any compromise or settlement thereof and recover the entire
cost thereof from the Indemnifying Party, including reasonable
attorneys' fees and all amounts paid as a result of such suit, action,
investigation, claim, or proceeding or the compromise or settlement
thereof. In the event that the Indemnifying Party undertakes the
defense of such matters, the Indemnified Party shall not be entitled to
recover from the Indemnifying Party any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the
defense thereof other than the reasonable costs of investigation
undertaken by the Indemnified Party with the prior written consent of
the Indemnifying Party.
9.6 Manner and Limitation of Indemnification. All indemnification provided
hereunder shall be effected, at the sole option of the Indemnified
Party, by either the payment in cash in U.S. Dollars or a wire or
telegraphic transfer of funds in U.S. Dollars, in each case by the
Indemnifying Party.
ARTICLE 10 - GOVERNING LAW AND DISPUTE RESOLUTION
10.1 Governing Law. This Agreement will be governed by and construed and
enforced exclusively in accordance with the laws of Singapore. Whenever
the provisions of the JV Contract or the Amended JV Contract are
incorporated by reference herein, such incorporation shall be an
incorporation of the language of such provisions only and shall not
include an incorporation of the governing law provision of the JV
Contract or the Amended JV Contract, as applicable, so that such
incorporated provisions from the JV Contract or the Amended JV
Contract, together with all other provisions of this Agreement, will,
for purposes of this Agreement, be governed by and construed and
enforced exclusively in accordance with the laws of Singapore.
10.2 Arbitration. All claims, disputes, or controversies concerning the
rights or obligations of any of the Parties under this Agreement or the
breach or alleged breach of this Agreement shall be finally settled by
binding arbitration, which arbitration shall be conducted in Singapore
under the Rules of Arbitration of the International Chamber of Commerce
then in effect (except as provided in this Agreement). It is
specifically understood and agreed that any such claim, dispute, or
controversy which cannot be resolved between the Parties, shall, upon
election by any Party to such claim, dispute, or controversy, be
submitted to arbitration irrespective of the magnitude thereof, the
amount in controversy or whether such claim,
23
dispute, or controversy would otherwise be considered justiciable or
ripe for resolution by a court or arbitral tribunal; and it is further
understood and agreed that only disputed matters of fact, law and legal
right and obligation will be subject to third party resolution. The
language of such arbitration shall be English. The Shareholders that
are parties to the dispute and Grant will choose, by mutual agreement,
one arbitrator within thirty (30) Days of receipt of notice of the
intent to arbitrate. If such Shareholders and Grant do not mutually
agree to the selection of an arbitrator within such thirty (30) Day
period, or within the time limits agreed to by both the Shareholders
and Grant in any extension of time, such Shareholders, collectively,
will nominate one arbitrator, and Grant will nominate a second
arbitrator, within five (5) Days after the last Day of such thirty (30)
Day period. Both of the arbitrators so nominated shall agree on a third
arbitrator within thirty (30) Days after the later to occur of the
dates of their respective appointments. If either the Shareholders or
Grant fails to nominate its respective arbitrator within the period
stated above, or if the two arbitrators nominated by the Shareholders
and Grant fail to reach agreement on the selection of the third
arbitrator within the thirty (30) Day period stated above, then the
appointment of such second and/or third arbitrator shall be made by the
appointing authority mutually agreed by the Shareholders and Grant, or
in the absence of such agreement, by the Secretary General of the
International Centre for Settlement of Investment Disputes. The award
rendered by the arbitrator will be in writing and will set forth in
reasonable detail the facts of the dispute and the reasons for the
tribunal's decision, and will include costs of arbitration, reasonable
attorneys' fees, and reasonable costs for expert and other witnesses.
Any decision or award of the arbitral tribunal shall be final and
binding upon the Parties, and judgment on such award may be entered in
any court having jurisdiction thereof. The Parties hereby waive, to the
extent permitted by law, any rights to appeal or to review of such
award by any court or tribunal. The Parties agree that the arbitral
award may be enforced against the Parties to the arbitration proceeding
or their assets wherever they may be found and that a judgment upon the
arbitral award may be entered in a court having jurisdiction thereof.
To the extent it becomes necessary to amend this Agreement to create
the right to enforce a foreign arbitral award in China, then the
Parties agree promptly to amend this Agreement to create such a right.
The Parties waive any right to appeal or any review of such award by
any court or tribunal of competent jurisdiction. The Parties
specifically agree to exclude the jurisdiction of the Singapore courts
to determine (i) any question of law that may arise during any arbitral
reference and (ii) disputes between the Parties that concern issues of
fraud all of which shall be determined by the arbitral tribunal.
10.3 Other Principles. The Parties hereby renounce their respective rights
to appeal from the decision of the arbitral tribunal and agree that no
Party may appeal to any court from such decision, and waive any other
provision of Chinese or other law or regulations that would otherwise
give the right to appeal the decision of the arbitral award.
24
ARTICLE 11 - OMITTED
ARTICLE 12 - TERM AND TERMINATION
This Agreement may be terminated prior to the Closing Date by or upon
(i) the mutual written agreement of the Parties; (ii) the termination by a party
as provided in Section 3.4 above; (iii) the termination by Grant by reason of
any representation or warranty made by the JV or any of the Shareholders in this
Agreement being untrue or incorrect in any material respect when made, or any
breach by the JV or any of the Shareholders of, or failure by the JV or any of
the Shareholders to observe or perform, any of its or their respective covenants
or agreements set out in this Agreement (including, without limitation, the
covenants set out in Article 5 hereof) or (iv) the termination by Shareholders
representing a majority of the shares being acquired by Grant hereunder by
reason of any representation or warranty made by Grant in this Agreement being
untrue or incorrect in any material respect when made, or any failure by Grant
to observe or perform, any of its or their respective covenants or agreements
set out in this Agreement (including, without limitation, the covenants set out
in Article 5 hereof) . The Day on which a party provides a notice of termination
under this Agreement is referred to in this Agreement as the "Notice of
Termination Date" or "date of Notice of Termination". Termination of the
Agreement by any party shall not eliminate or extinguish a party rights or
liability under Article 9 of this Agreement.
ARTICLE 13 - MISCELLANEOUS
13.1 Relationship of the Parties. No Party has the authority to bind any
other Party, except as specifically provided herein, and each Party
hereby agrees to indemnify and hold harmless each of the other Parties
from and against any and all losses, claims, costs and liabilities
arising from binding any of the other Parties, except as specifically
provided herein.
13.2 Limitation of Liability. In no event shall any Party or any Affiliate
thereof or any of their respective directors, officers or employees be
liable to any other Party or any Affiliate thereof or any of their
respective directors, officers or employees for any indirect,
consequential, punitive or exemplary losses or damages (including
without limitation lost profits or lost investment opportunity) arising
or resulting from any breach of this Agreement, whether such liability
arises in contract, tort or otherwise.
13.3 Entire Agreement. This Agreement (including the Schedules and Exhibits
attached hereto and related agreements referenced herein) sets forth
the entire agreement and understanding of the Parties with respect to
the subject matter hereof and supersedes and replaces all prior written
or oral agreements, arrangements, understandings and representations
relating to the subject matter hereof and thereof.
13.4 Amendments; No Waiver. This Agreement may be amended or modified only
by a duly-authorized written instrument executed by all the Parties and
clearly marked thereon as an amendment to this Agreement. No waiver by
a Party of any matter, non-compliance or breach of any provision of
this Agreement shall be binding, unless such waiver is made expressly
and evidenced or confirmed in writing. Any such waiver shall relate
only to the matter, noncompliance or breach as expressly waived and
shall not apply to a repetition thereof or any other subsequent matter,
non-compliance or breach.
25
13.5 Assignment. No Party may assign any of its rights or delegate any of
its obligations under this Agreement without the prior written consent
of all the other Parties; provided, however, that Grant (but not GPI)
may assign its rights and obligations under this Agreement to an
Affiliate of Grant upon written notice to the JV and the Shareholders,
whereupon such Affiliate shall be substituted for Grant for all
purposes of and under this Agreement.
13.6 Notices. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement (each, a
"Notice") shall be in writing, in English, and shall be deemed to be
given or made if (i) delivered in person, (ii) delivered by reputable,
international air courier service, charges prepaid, confirmation of
receipt requested, or (iii) transmitted by facsimile, answer back
requested, addressed to the appropriate Party or Parties as set forth
on Schedule 13.6 (as such addresses may be changed from time to time by
Notice in accordance with the provisions of this Section 13.6). The
Signing Date of any such Notice shall be deemed to be (i) the date of
receipt thereof, if delivered personally or by reputable international
air courier, if received during normal business hours in the country of
receipt, or otherwise at the opening of business on the Business Day in
the country of receipt, immediately following the Day of receipt; or
(ii) twelve (12) hours after transmission by facsimile with confirmed
answer back. Any Party may at any time and from time to time, by
written Notice to the other Parties, change the address to which
notices, requests, demands or other communications to such Party are to
be delivered.
13.7 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if each of the Parties had signed
the same document. All counterparts shall be construed together and
constitute one and the same instrument.
13.8 Language. This Agreement (including the Exhibits and Schedules hereto)
is written and shall be executed in the English language. Any
translation of this Agreement (including the Exhibits and Schedules
hereto) shall have no legal validity or binding effect unless and until
such translation has been approved and executed by Grant and each of
the other Parties.
13.9 Waiver of Immunity. Each Party agrees that the execution, delivery and
performance by it of this Agreement constitute private and commercial
acts and agrees that, in any judicial or arbitral proceeding involving
such Party under this Agreement (whether for damages, an injunction,
specific performance, enforcement of an arbitral award, or otherwise),
no immunity (to the extent it may exist at any time, whether on the
ground of sovereignty or otherwise) from those proceedings, from
attachment, lien or levy of or on its assets, or from execution of
judgment, shall be claimed by it or on its behalf or with respect to
its assets, any such immunity being irrevocably waived by each of the
Parties.
13.10 No Third Party Beneficiaries. Nothing in this Agreement is intended or
shall be construed to confer any rights or remedies on any person other
than the Parties and their respective permitted successors and assigns.
13.11 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of that prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the
validity or enforceability of that provision in any other jurisdiction.
26
13.12 OMITTED.
13.13 Attorney's Fees and Costs. Each Party shall be responsible for its own
attorney's fees and costs in connection with the transactions and
actions contemplated by this Agreement; provided, however, that Grant
shall, on or promptly after the Closing Date, upon the receipt by Grant
from Xxxxxxx that legal fees in this amount have been incurred for the
transaction matters described below, reimburse Xxxxxxx, by wire
transfer to Xxxxxxx, for the amount of attorney's fees, translations,
accounting fees and costs, not to exceed thirty-five thousand U.S.
Dollars (US$35,000.00), incurred by Xxxxxxx on behalf of the JV and
Shareholders on or before the Signing Date in connection with the
review and preparation by the JV's legal counsel of the documentation
required to consummate the transactions contemplated by this Agreement
(including this Agreement and the related Schedules and Exhibits) and
the preparation of the documentation and the processing by such counsel
of the approvals and registrations required by the appropriate
Governmental Instrumentalities the consummation of the transactions
contemplated by this Agreement to occur on or before the Closing Date.
All fees associated with official Chinese translations shall be borne
by Grant.
13.14 Negotiations. Each Party acknowledges and agrees that this Agreement,
as written and executed in the English language, is the result of
negotiations by and among, and has been reviewed by, all the Parties
and their respective counsel, and that this Agreement shall be deemed
to be the product of all the Parties, and that no ambiguity shall be
construed in favor of or against any Party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed
and sealed by their respective duly authorized representatives, as of the
Signing Date.
JINAGSU XXXXXXXX XXXXX PRIDECO TUBULAR
CO. LIMITED
CHOP:
By: /s/ AUTHORIZED SIGNATORY
--------------------------------
Name:
Title:
JIANGSU SHUGUANG GROUP COMPANY
CHOP:
By: /s/ AUTHORIZED SIGNATORY
--------------------------------
Name:
Title:
XXXXXXX COMPANY, INC.
SEAL:
By: /s/ XXXXXXXXXXX X. XXXXXXX
--------------------------------
Name:
Title:
XXXXXXX XXX,
SEAL:
By: /s/ AUTHORIZED SIGNATORY
--------------------------------
Name:
Title:
28
WICKANDER & ASSOCIATES, INC.
SEAL:
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
XXXXX X. XXXXXXXXX
/s/ XXXXX X. XXXXXXXXX
--------------------------------
QUALIFIED SPECIALISTS, INC.
SEAL:
By: /s/ BUD WEIJHTMAN
--------------------------------
Name: Bud Weijhtman
Title: President
GRANT PRIDECO MAURITIUS LIMITED
SEAL:
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
29
SCHEDULE 1.1
LIST OF SHAREHOLDERS
1. Jiangsu Shuguang Group Company (formerly known as Yangzhou Daybreak Bellows
Plant), a collectively-owned enterprise organized and existing under the laws of
China, referred to herein as "Shuguang".
2. Wickander & Associates Inc., a corporation organized and existing under the
laws of the State of Texas, United States of America, referred to herein as
"WAI".
3. Xxxxx Xxxxx Xxxxxxxxx, an individual who resides in California, United States
of America, referred to herein as "Dauderman".
4. Qualified Specialists, Inc., a corporation organized and existing under the
laws of the State of Texas, United States of America, referred to herein as
"QSI".
5. Xxxxxxx XXX, an individual retirement account, with Gruntal & Co. LLC
Custodian, FBO Xxxxxxxxxxx
X. Xxxxxxx XXX Rollover
30
SCHEDULE 3.1
PURCHASED SHARES
Shuguang will sell to Grant the number of Shares and will receive the
consideration set opposite Shuguang's name below:
CASH GRANT SHARE
NAME NUMBER OF JV SHARES TO BE SOLD CONSIDERATION CONSIDERATION
---- ------------------------------ ------------- -------------
Shuguang 1,060,750 US$2,000,000 728,910
31
SCHEDULE 3.2
EXCHANGING SHAREHOLDERS
GRANT SHARE
NAME NUMBER OF JV SHARES TO BE EXCHANGED CONSIDERATION
---- ----------------------------------- -------------
Xxxxxxx XXX 207,500 246,961
WAI 128,000 128,700
Dauderman 191,300 185,900
QSI 10,000 9,529
32
SCHEDULE 3.5
POST CLOSING JV OWNERSHIP
Grant Prideco Mauritius 2,304,750 70%
Shuguang 877,750 27%
Xxxxxxx XXX 100,000 3%
Xxxxxxx Company, Inc. 250 0%
--- --
TOTAL 3,292,750 100%
========= ----
33
SCHEDULE 5.1.3
CONSENTS AND APPROVALS FOR CLOSING
New Foreign Exchange Registration Certificate issued by SAFE to reflect the
changes to the JV's capital structure (post-closing matter).
Approval from the supervising unit of Shuguang authorizing Shuguang to
transfer part of its interest in the JV to Grant. Such approval shall be
evidenced in a certificate certifying to the fact Shuguang is not a
state-owned entity and that the Sharesbeing transferred to Grant were not
purchased in the Initial Transactions and are not state-owned assets.
34
SCHEDULE 6.1.6
LITIGATION
[NONE]
35
SCHEDULE 6.2.2
OWNERSHIP OF JV FOLLOWING INITIAL TRANSACTIONS
Shuguang 1,948,500
Xxxxxxx XXX 307,500
STOCO 250
Dauderman 191,300
WAI 128,000
QSI 10,000
Grant Prideco 707,200
---------
TOTAL 3,292,750
36
SCHEDULE 6.2.16
1. The Lease between the JV and Shuguang
2. The JV has a working capital facility arrangement with Agricultural
Bank of China and People's Bank of China, pursuant to which the XX
xxxxxxx the funds needed for procurement of raw materials used in the
production of the products produced by the JV (the "Working Capital
Facility"). There is no formal written agreement documenting the terms
of the Working Capital Facility. There is typically approximately
US$2,000,000 outstanding on the Working Capital Facility, and the
amount outstanding will not exceed 20% of the JV's total sales.
3. The H-Series License Agreement (amended and restated to delete royalty
payment requirements).
4. Shuguang and any other Party that has an economic interest in the Tool
Joint Facility covenants and agrees that they will cause the respective
directors designated by them on the Board of Directors of the JV not to
vote on or approve any matters before the JV's Board of Directors
related to transfer prices on products from the Tool Joint Facility.
5. The JV has historically paid sales commissions to STOCO for sales of
drill pipe made domestically and outside of China, in which STOCO has
acted as agent for the JV.
6. WAI has historically been paid consulting fees for work and assistance
it has provided the JV in connection with its manufacturing operations.
37
SCHEDULE 13.6
Notice Information for All Parties
To Shuguang:
Jiangsu Shuguang Group Company
Baimi Town, Jiangyan City
Jiangsu Province
The People's Republic of China
Attention: Xx. Xxxxx Jiahua
Telecopy: (00-000) 000-0000
Telephone: (00-000) 000-0000
To WAI:
Wickander & Associates, Inc.
0000 XX 0000
Xxxxxx, Xxxxx 00000 X.X.X.
Attention: Xx. Xxxx Xxxxxxxxx
Telecopy: (0) 000-000-0000
Telephone: (0) 000-000-0000
To Dauderman:
Xx. Xxxxx X. Xxxxxxxxx
0 Xxxxxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
X.X.X.
Telecopy: (0) 000-000-0000
Telephone: (0) 000-000-0000
To QSI:
Qualified Specialists, Inc.
0000 Xxxxxxx Xx. Xx.
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Telecopy: (0) 000-000-0000
Telephone: (0) 000-000-0000
38
To STOCO and Xxxxxxx XXX
0000 Xxxxx Xxxxxx, Xxxxx X.,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Telephone: (000) 000-0000
Telecopy (000) 000-0000
To the JV:
Jiangsu Xxxxxxxx Xxxxx Prideco Tubular Limited
00 Xxxxxxxxx Xxxx
Baimi Town
Jiangsu City
Jiangsu Province
The People's Republic of China
Attention: Mr. Xx Xx Shi
Telecopy: (00-000) 000-0000
Telephone: (00-000) 000-0000
To Grant:
Grant Prideco Mauritius Limited
c/o Ernst & Young Financial Services Ltd.
Xxxxx Xxxxxxx Street
Curepipe, Republic of Mauritius
Attention: Xxx. Xxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With copies to:
Grant Prideco, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx
X.X.X. 00000
Attention: Xx. Xxxxxx X. Xxxx
Telecopy: (0) 000-000-0000
Telephone: (0) 000-000-0000
and
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx
X.X.X. 00000
Attention: Xx. Xxxxxxx X. Still
Telecopy: (0) 000-000-0000
Telephone: (0) 000-000-0000
39
EXHIBIT A
FORM OF SECOND AMENDED JV ARTICLES OF ASSOCIATION
40
EXHIBIT B
FORM OF SECOND AMENDED JV CONTRACT
41
EXHIBIT C
[OMITTED]
42
EXHIBIT D
OMITTED
43
EXHIBIT E
[Omitted]
44
EXHIBIT F
REPRESENTATIONS AND WARRANTIES RELATING TO SECURITIES AND EXCHANGE MATTERS
Capitalized Terms used in this Exhibit F, unless otherwise defined herein, shall
have the meanings assigned thereto in the Investment Agreement to which this
Exhibit F is a part.
1.1 Accredited Investor; Investment Purpose. Subject to the provisions
of Exhibit J governing registration rights:
(a) Each of Grant and GPI acknowledges that it has an obligation to
register all of the Grant Shares pursuant to Exhibit J to the Investment
Agreement. Until such registration becomes effective under the Securities Act or
under any applicable securities laws of any state (collectively, the "Securities
Laws"), the Grant Shares (collectively, the "Securities") will not be registered
and are being issued in reliance upon exemptions from the Securities Act and the
Securities Laws, which are predicated in part on the representations and
warranties and agreements of the Shareholders and the Shareholders contained
herein.
(b) Each Shareholder represents and warrants that (i) such Shareholder
is an "accredited investor" within the meaning of Regulation D promulgated by
the Commission pursuant to the Securities Act and is not relying on a financial
advisor in connection with his, her or its participation in the transactions
contemplated hereby in connection with evaluating the merits and risks of this
Agreement, the transactions contemplated hereby and an investment in the
Securities and the suitability thereof as an investment therefor, (ii) such
Shareholder has such knowledge and experience in financial, investment and
business matters, such experience being based on actual participation therein,
such Shareholder is capable of evaluating the merits and risks of this
Agreement, the transactions contemplated hereby and an investment in the
Securities and the suitability thereof as an investment therefor, (iii)the
Securities will be acquired for such Shareholder's own account and not with a
view toward resale or redistribution in violation of the Securities Laws, (iv)
such Shareholder has reviewed such Shareholder's financial condition and
commitments, and such Shareholder has adequate means to provide for such
Shareholder's financial needs and possible contingencies, has no present or
existing or contemplated future need to dispose of all or any portion of such
Shareholder's interest in the Securities to satisfy any existing or contemplated
undertaking, need or indebtedness, and has assets or sources of income that,
taken together, are more than sufficient so that such Shareholder can bear the
risk of the loss of his, her or its entire investment in the Securities, (v)
such Shareholder has no plan or intention to sell, exchange or otherwise dispose
of his, her or its interest in the Securities except in compliance with
applicable securities laws, and (vi) in connection with the transactions
contemplated hereby, no assurances have been made concerning the future results
of Grant Prideco, Inc. as to the value of the Securities. Such Shareholder
understands that such Shareholder must bear the economic risks of such
Shareholder's investment in the Securities for an indefinite period of time.
Such Shareholder understands that neither Grant nor GPI is under any obligation
to file a registration statement with respect to any Securities except as
expressly set forth in Exhibit J hereof.
45
(c) Such Shareholder has consulted with such Shareholder's own counsel
in regard to the Securities Laws and is fully aware (i) of the circumstances
under which such Shareholder is required to hold the Securities, (ii) of the
limitations on the transfer or disposition of the Securities, (iii) that the
Securities must be held indefinitely unless the transfer thereof is registered
under the Securities Laws or an exemption from registration is available and
(iv) that no exemption from registration is likely to become available for at
least one year from the date of acquisition of the Securities. Such Shareholder
has been advised by such Shareholder's counsel as to the provisions of Rules 144
and 145 as promulgated by the Commission under the Securities Act and has been
advised of the applicable limitations thereof. Such Shareholder acknowledges
that Grant is relying upon the truth and accuracy of the representations and
warranties in this Exhibit F by such Shareholder in consummating the
transactions contemplated by this Agreement without registering the Securities
under the Securities Laws.
(d) Such Shareholder has made an independent investigation of the
pertinent facts relating to the transactions contemplated hereby, has reviewed
carefully the terms of this Agreement and the information furnished to such
Shareholder to the extent he, she or it deems necessary to be fully informed
with respect thereto and understands the nature of an investment in the
Securities.
(e) Such Shareholder agrees that the instruments representing any of
the Securities will be imprinted with the following legend, the terms of which
are specifically agreed to:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR THE
SECURITIES LAWS OF ANY STATE, IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION REQUIREMENTS. WITHOUT SUCH REGISTRATION, SUCH SHARES MAY
NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT
UPON DELIVERY TO THE JV OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE JV THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE,
PLEDGE, HYPOTHECATION OR TRANSFER OR THE SUBMISSION TO THE JV OF SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE JV TO THE EFFECT THAT SUCH
SALE, PLEDGE, HYPOTHECATION OR TRANSFER SHALL NOT BE IN VIOLATION OF
THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS OR ANY
RULE OR REGULATION PROMULGATED THEREUNDER.
46
EXHIBIT G
Article 16 TPCO and its affiliates agree that they will not engage,
directly or indirectly, in any activities involving the production of similar
products to those produced by the Joint Venture or otherwise in competition with
the Joint Venture, or any business similar to any business conducted by the
Joint Venture, including the sale of "green" drill pipe tubes, without the
unanimous approval of the directors of the Board meeting of the Joint Venture.
Grant and its affiliates agree that they will not engage, directly or
indirectly, in any activities involving the manufacture of unfinished,
upset-to-grade drill pipe in China without the unanimous approval of the Board
of Directors of the Joint Venture. In addition, Grant and its affiliates agree
that in the event they decide to make any additional investments in a
manufacturer of finished drill pipe in China, at any time when Grant is a Party
to this Joint Venture Contract, they will first offer the opportunity to make
such investment to the Joint Venture. The Joint Venture must be given at least
thirty (30) days prior written notice of such proposed investment, which notice
must describe the main terms and conditions of the proposed investment (an
"Investment Notice"). Within thirty (30) days after the effective date of the
Investment Notice, the Joint Venture must notify Grant of the Joint Venture's
decision to make such investment, on the terms and conditions set out in the
Investment Notice (an "Acceptance Notice"). Such decision of the Joint Venture
shall be made by the unanimous vote of the board of directors of the Joint
Venture. And the Joint Venture shall have the priority to make the additional
investment in the Joint Venture. Notwithstanding the foregoing, the parties
understand that Grant Prideco intends to increase its investment in JSG to a 70%
ownership level or above and that such investment in JSG shall not be subject to
this clause.
47
EXHIBIT H
SHAREHOLDER RELEASE
1.1 Release
(a) AS OF THE CLOSING, EACH OF THE SHAREHOLDERS AND STOCO DOES
HEREBY FOR ITSELF, HIMSELF OR HERSELF AND ITS, HIS OR HER SUCCESSORS AND ASSIGNS
REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE, THE JV AND THEIR RESPECTIVE
AFFILIATES, AND THEIR SUCCESSORS AND ASSIGNS, OF AND FROM ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES, RESPONSIBILITIES, DISPUTES, CAUSES OF ACTION AND
OBLIGATIONS OF EVERY NATURE WHATSOEVER, LIQUIDATED OR UNLIQUIDATED, KNOWN OR
UNKNOWN, MATURED OR UNMATURED, FIXED OR CONTINGENT, THAT SUCH SHAREHOLDER OR ITS
AFFILIATES NOW HAS, OWNS OR HOLDS OR HAS AT ANY TIME PREVIOUSLY HAD, OWNED OR
HELD AGAINST THE JV, INCLUDING WITHOUT LIMITATION ALL LIABILITIES CREATED AS A
RESULT OF THE NEGLIGENCE, GROSS NEGLIGENCE AND WILLFUL ACTS OF THE JV AND ITS
EMPLOYEES AND AGENTS, OR UNDER A THEORY OF STRICT LIABILITY, EXISTING AS OF THE
CLOSING DATE OR RELATING TO ANY ACTION, OMISSION OR EVENT OCCURRING ON OR PRIOR
TO THE CLOSING DATE; PROVIDED, HOWEVER, THAT ANY CLAIMS, LIABILITIES, DEBTS OR
CAUSES OF ACTION THAT MAY ARISE IN CONNECTION WITH THE FAILURE OF ANY OF THE
PARTIES HERETO TO PERFORM ANY OF THEIR OBLIGATIONS HEREUNDER OR UNDER ANY OTHER
AGREEMENT RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY OR FROM ANY BREACHES
BY ANY OF THEM OF ANY REPRESENTATIONS OR WARRANTIES HEREIN OR IN CONNECTION WITH
ANY OF SUCH OTHER AGREEMENTS SHALL NOT BE RELEASED OR DISCHARGED PURSUANT TO
THIS AGREEMENT. THIS RELEASE SHALL NOT APPLY TO PAYMENTS OWED RELATING TO SALES
COMMISSIONS OR CONSULTING SERVICES EARNED IN THE ORDINARY COURSE, LEASE
AGREEMENT PAYMENTS OR PAYMENTS DUE FOR TOOL JOINTS PURCHASED IN THE ORDINARY
COURSE OF BUSINESS.
(b) Each of the Shareholders and STOCO represents and warrants
that it, he or she has not previously assigned or transferred, or purported to
assign or transfer, to any Person or entity whatsoever all or any part of the
claims, demands, liabilities, responsibilities, disputes, causes of action or
obligations released herein. Each of the Shareholders covenants and agrees that
such Shareholder will not assign or transfer to any Person or entity whatsoever
all or any part of the claims, demands, liabilities, responsibilities, disputes,
causes of action or obligations to be released herein. Each of the Shareholders
(and STOCO) represents and warrants that such Shareholder (or STOCO) has read
and understands all of the provisions of this Exhibit H and has had the
opportunity to be represented by legal counsel of his or her own choosing in
connection with the negotiation, execution and delivery of this Agreement.
(c) THE RELEASE PROVIDED BY THE SHAREHOLDERS AND STOCO PURSUANT TO
THIS EXHIBIT H SHALL APPLY NOTWITHSTANDING THAT THE MATTER FOR WHICH RELEASE IS
PROVIDED MAY RELATE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE, GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR VIOLATION OF LAW BY THE JV AND ITS RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, AND FOR LIABILITIES BASED ON THEORIES
OF STRICT LIABILITY, AND SHALL BE APPLICABLE WHETHER OR NOT NEGLIGENCE OF THE
RELEASED PARTY IS ALLEGED OR PROVEN, IT BEING THE INTENTION OF THE PARTIES TO
RELEASE THE RELEASED PARTY FROM AND AGAINST ITS ORDINARY, SOLE AND CONTRIBUTORY
NEGLIGENCE AND GROSS NEGLIGENCE AS WELL AS LIABILITIES BASED ON THE WILLFUL
ACTIONS OR OMISSIONS OF THE RELEASED PARTY AND LIABILITIES BASED ON THEORIES OF
STRICT LIABILITY.
48
EXHIBIT I
NON-COMPETE
Each Shareholder agrees that to induce Grant to pay the Cash
Consideration and the Grant Shares and enter into this Agreement, the protection
and maintenance of the goodwill of the JV and its business constitutes a
legitimate interest to be protected by Grant by this covenant not to compete.
Therefore, each Shareholder agrees, severally and not jointly, that for the
period (the "Noncompetition Period") commencing upon the Closing Date and ending
upon the fifth anniversary (the "Ending Date") of the Closing Date, it shall
not, and shall cause its Affiliates not to, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, stockholder (other
than as a stockholder of 5% or less of a publicly traded company), corporate
officer or director, or in any other individual or representative capacity,
engage or participate in the manufacture or sale of finished drill pipe anywhere
in China or elsewhere in the continent of Asia (such entire geographic area is
hereinafter referred to as the "Non-Competition Area" except on behalf of the JV
as a sales agent or consultant). Each Shareholder represents to Grant that the
enforcement of the restriction contained in this Exhibit I would not be unduly
burdensome to such Shareholder. Each Shareholder further represents and
acknowledges that such Shareholder has willingly entered into this agreement not
to compete and is willing and able to compete in other geographical areas not
prohibited by this Exhibit I.
Each Shareholder agrees that in addition to any other remedies
contained in the Agreement, a breach or violation of this covenant not to
compete by or such Shareholder shall entitle Grant, as a matter of right, to an
injunction issued by any court of competent jurisdiction, restraining any
further or continued breach or violation of this covenant. Such right to an
injunction shall be cumulative and in addition to, and not in lieu of, any other
remedies that Grant may show itself justly entitled. Further, each Shareholder
agrees that during any period in which such Shareholder is in breach of this
covenant not to compete, the time period of this covenant shall be extended for
the amount of time that such Shareholder is in breach hereof.
Each Shareholder agrees that for the Non-Competition Period such
Shareholder will not, either directly or indirectly, (i) solicit for employment,
or allow any corporation or business entity controlled directly or indirectly by
or affiliated with the Shareholder to solicit for employment, any Person that at
that time is, or at any time during the 12-month period immediately preceding
the Closing Date was, an employee, consultant or agent of either Company or
Grant or any of their Affiliates (except this shall not prohibit reasonable and
customary general solicitations of employment through the media) or (ii) make
known to any Person that is engaged in the Non-Competition Business in the
Non-Competition Area or executive recruiting or search firms that have clients
engaged in such businesses, the names of any Person that at that time is, or at
any time during the 12-month period immediately preceding the Closing Date was,
an employee, consultant or agent of Grant, Company or any of their Affiliates
relating to the Non-Competition.
Notwithstanding anything contained herein to the contrary, the
existence of any claim or cause of action of a Shareholder against Grant,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Grant of the covenants of such Shareholder
contained in this Exhibit I.
49
The parties to this Agreement agree that the limitations contained in
this Exhibit I with respect to geographic area, duration and scope of activity
are reasonable. However, if any court shall determine that the geographic area,
duration or scope of activity of any restriction contained in this Exhibit I is
unenforceable, it is the intention of the parties that such restrictive covenant
set forth herein shall not thereby be terminated but shall be deemed amended to
the extent required to render it valid and enforceable.
50
EXHIBIT J
REGISTRATION RIGHTS
For purposes of this Exhibit J, Grant shall mean both Grant and GPI.
1.1 Demand Rights.
GRANT shall file a registration statement on Form S-3 with the
Securities and Exchange Commission within ten business days following the
Closing to register under the Securities Act the offer and sale by the
Shareholders of all of the Grant Shares owned by the Shareholders pursuant to a
non-underwritten offering; provided, however, GRANT shall not be obligated to
prepare and file any registration statement pursuant to this Exhibit J, or
prepare or file any amendment or supplement thereto, and may suspend sales
thereunder, if at any time when GRANT reasonably believes that the filing
thereof at the time requested, or the offering of securities pursuant thereto,
would require premature disclosure of information not otherwise required to be
disclosed to the potential detriment of GRANT or require disclosure of financial
or other information not yet available to Grant; provided, however, that the
filing of a registration statement, or any amendment or supplement thereto, by
GRANT may not be deferred, and the sale and distribution of shares may not be
suspended, in each case pursuant to the foregoing provisions, for more than
forty five (45) consecutive business days nor more than sixty (60) business days
in the aggregate in any 12-month period.
1.2 Procedure.
If and whenever GRANT is required by the provisions of this Exhibit J
to effect the registration of any Shares under the Securities Act, GRANT will,
subject to the other provisions of this Exhibit J:
(f) as expeditiously as reasonably practicable, prepare and file with
the Commission the registration statement in which such Grant Shares are to be
included and use its best efforts to cause such registration statement to become
effective as soon as possible and remain effective;
(g) as expeditiously as reasonably practicable, prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act in accordance with the intended method of distribution set forth
in such registration statement;
(h) as expeditiously as reasonably practicable, furnish to the
Shareholders (or any Shareholder Representative) such number of copies of
prospectuses and preliminary prospectuses in conformity with the requirements of
the Securities Act, and such other documents as the Shareholders may reasonably
request, in order to facilitate the public sale of such Shares; provided,
however, that the obligation of GRANT to deliver copies of prospectuses or
preliminary prospectuses to the Shareholders (or any Shareholder Representative)
shall be subject to the receipt by GRANT of reasonable assurances from the
Shareholders that the Shareholders will comply with
51
the applicable provisions of the Securities Act and of such other securities
laws as may be applicable in connection with any use by the Shareholders of any
prospectuses or preliminary prospectuses;
(i) as expeditiously as practicable, use commercially reasonable
efforts to register or qualify the Shares covered by such registration statement
under such other securities laws of such United States jurisdictions as the
Shareholders (or any Shareholder Representative) shall reasonably request
(considering the nature and size of the offering) and do any and all other acts
and things that may be necessary or desirable to enable the Shareholders to
consummate the public sale or other disposition in such jurisdictions of Shares;
provided, however, that GRANT shall not be required to qualify to transact
business as a foreign corporation in any jurisdiction in which it would
otherwise not be required to be so qualified or to take any action that would
subject it to general service of process in any jurisdiction in which it is not
then so subject or subject it to franchise or other state or jurisdictional
Taxes in any state or jurisdiction in which it is not then so subject to Taxes;
(j) bear all Registration Expenses (as defined below) in connection
with all registrations hereunder; provided, however, that all Selling Expenses
(as defined below) of Grant Shares and all fees and disbursements of counsel for
the Shareholders in connection with each registration pursuant to this Article
13 shall be borne by the Shareholders. Expenses incurred by GRANT in complying
with this Exhibit J, including, without limitation: (i) all registration and
filing fees; (ii) all printing expenses; (iii) all legal fees and disbursements
of counsel for GRANT; (iv) all blue sky fees and expenses; and (v) all fees and
expenses of accountants for GRANT, are herein referred to as "Registration
Expenses". All underwriting fees and discounts and brokerage and selling
commissions relating to Shares to be registered for sale by the Shareholders and
fees and expenses of the counsel for the Shareholders and any other costs (other
than Registration Expenses) applicable to the sales by the Shareholders in
connection with any such registration are herein referred to as "Selling
Expenses".
1.4 Indemnification.
(a) In the event of a registration of any Shares under the Securities
Act pursuant to this Exhibit J, GRANT will indemnify and hold harmless the
Shareholders (or any Shareholder Representative) and any other Person, if any,
who controls the Shareholders (or any Shareholder Representative) within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which the Shareholders (or any Shareholder
Representative) or such controlling Persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities or actions in respect thereof arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained, on
the effective date thereof, in any registration statement under which such
Shares were registered under the Securities Act, any preliminary prospectus
distributed with the consent of GRANT or final prospectus contained in such
effective registration statement, or any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Shareholders (or
any Shareholder Representative) and each such controlling Person for any legal
or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
52
provided, however, that GRANT will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, such preliminary prospectus, such final
prospectus or such amendment or supplement, in reliance upon and in conformity
with written information furnished to GRANT by or on behalf of the Shareholders
(or any Shareholder Representative) or a controlling Person of the Shareholders
(or any Shareholder Representative) specifically for use in the preparation
thereof.
(b) In the event of any registration of any Shares under the Securities
Act pursuant to this Exhibit J, the Shareholders (or any Shareholder
Representative) will indemnify and hold harmless GRANT and each Person, if any,
who controls GRANT within the meaning of Section 15 of the Securities Act, each
officer of GRANT who signs the registration statement, each director of GRANT
and each underwriter and each Person who controls any underwriter within the
meaning of Section 15 of the Securities Act, against any and all such losses,
claims, damages, liabilities or actions that GRANT or such officer, director,
underwriter or controlling Person may become subject under the Securities Act or
otherwise, and will reimburse GRANT and each such officer, director, underwriter
and controlling Person for any legal or any other expenses reasonably incurred
by such party in connection with investigating or defending any such loss,
claim, damage, liability or action, if (a) such loss, claim, damage, liability
or action in respect thereof arises out of or is based upon any untrue statement
or alleged untrue statement of any material fact furnished to GRANT by or on
behalf of the Shareholders (or any Shareholder Representative) specifically for
use in connection with the preparation of such registration statement or
prospectus contained in any such registration statement, such preliminary
prospectus or such final prospectus, or any amendment thereof or supplement
thereto, or arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (b) any such untrue statement or
omission of a material fact was made in reliance upon and in conformity with
written information furnished to GRANT by or on behalf of the Shareholders (or
any Shareholder Representative) specifically for use in connection with the
preparation of such registration statement or prospectus or failure to comply
with applicable prospectus delivery requirements.
(c) Promptly after receipt by any indemnified Person of notice of any
claim or commencement of any action in respect of which indemnity is to be
sought against an indemnifying Person pursuant to this Exhibit, such indemnified
Person shall notify the indemnifying Person in writing of such claim or of the
commencement of such action, and, subject to provisions hereinafter stated, in
case any such action shall be brought against an indemnified Person and such
indemnifying Person shall have been notified of the same, such indemnifying
Person shall be entitled to participate therein, and, to the extent it shall
wish, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified Person, and after notice from the indemnifying Person to such
indemnified Person of its election to assume the defense thereof, such
indemnifying Person shall not be liable to such indemnified Person for the fees
and expenses of legal counsel for such indemnified Person incurred thereafter in
connection with the defense thereof; provided, however,
53
if there exists or will exist a conflict of interest that would make it
inappropriate in the reasonable judgment of the indemnified Person for the same
counsel to represent both the indemnified Person and such indemnifying Person,
then such indemnified Person shall be entitled to retain its own counsel at the
expense of such indemnifying Person; provided further, however, the indemnifying
Person shall not be required to pay for more than one separate counsel for all
of the indemnified Persons in addition to any local counsel.
(d) If the indemnification provided for in this Section 1.4 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of GRANT and the Buyer on the one hand and the Shareholders (or
any Shareholders Representative) on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the GRANT on the one hand or the Shareholders (or any
Shareholders Representative) on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Shareholders and the Shareholders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
1.5 Termination.
The rights of the Shareholders as to registration provided for in this
Exhibit as to the Shares shall terminate immediately upon the first availability
of the ability to freely sell the shares without use of the registration
statement.
1.6 Shareholder Representative.
Each Shareholder designates and appoints Dauderman as its Shareholder
Representative. Any notices sent by Grant to the Shareholder Representative
shall be deemed notice given to each Shareholder hereunder.
54
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS 1
1.1 Definitions 2
1.2 Construction 5
ARTICLE 2 - GENERAL 5
2.1 Purpose 5
ARTICLE 3 - INVESTMENT 5
3.1 Purchase and Sale 5
3.2 Exchange of Shares 5
3.3 Closing Conditions 5
3.4 Closing 7
3.5 Resulting Capital Structure 8
ARTICLE 4 - ADVANCE 8
ARTICLE 5 - COVENANTS 8
5.1 Consents and Authorizations 8
5.2 Conduct of Business 9
5.3 Compliance with Laws 11
5.4 Transfer of Shares 11
5.5 Cooperation 11
5.7 Further Implementation 11
5.8 Post-Closing Ownership Deed 11
5.9 Sale or Issuance of Shares to Third Parties ERROR! BOOKMARK NOT DEFINED.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES 12
6.1 Shareholders 12
6.2 The JV 14
6.3 Grant 18
ARTICLE 7 - OTHER AGREEMENTS 20
ARTICLE 8 - PAYMENT TO GRANT 21
ARTICLE 9 - INDEMNIFICATION 21
9.1 Survival 21
9.2 Grant's Losses 21
9.3 Shareholders' Losses 22
9.4 Notice of Loss 22
9.5 Right to Defend 22
9.6 Manner and Limitation of Indemnification 23
ARTICLE 10 - GOVERNING LAW AND DISPUTE RESOLUTION 23
10.1 Governing Law 23
10.2 Arbitration 23
10.3 Other Principles 24
ARTICLE 11 - CONFIDENTIALITY 24
11.1 Confidentiality ERROR! BOOKMARK NOT DEFINED.
11.2 Use of Confidential Information ERROR! BOOKMARK NOT DEFINED.
11.3 Return of Confidential Information ERROR! BOOKMARK NOT DEFINED.
55
ARTICLE 12 - TERM AND TERMINATION 24
12.1 Term and Termination ERROR! BOOKMARK NOT DEFINED.
ARTICLE 13 - MISCELLANEOUS 25
13.1 Relationship of the Parties 25
13.2 Limitation of Liability 25
13.3 Entire Agreement 25
13.4 Amendments; No Waiver 25
13.5 Assignment 25
13.6 Notices 26
13.7 Counterparts 26
13.8 Language 26
13.9 Waiver of Immunity 26
13.10 No Third Party Beneficiaries 26
13.11 Severability 26
13.12 Survival ERROR! BOOKMARK NOT DEFINED.
13.13 Attorney's Fees and Costs 27
13.14 Negotiations 27
SCHEDULE 1.1 30
SCHEDULE 3.1 31
SCHEDULE 3.3.8 33
SCHEDULE 3.5 33
SCHEDULE 5.1.3 34
SCHEDULE 6.1.6 35
SCHEDULE 6.2.2 36
SCHEDULE 6.2.13 ERROR! BOOKMARK NOT DEFINED.
SCHEDULE 6.2.16 37
SCHEDULE 13.6 38
EXHIBIT A FORM OF AMENDED JV ARTICLES OF ASSOCIATION 41
EXHIBIT B FORM OF AMENDED JV CONTRACT 42
EXHIBIT C FORM OF MARKETING AND ADMINISTRATIVE SUPPORT AGREEMENT 43
EXHIBIT D FORM OF POST CLOSING OWNERSHIP DEED 44
EXHIBIT E FORM OF WAI CONSULTING AGREEMENT ERROR! BOOKMARK NOT DEFINED.
EXHIBIT F REPRESENTATIONS AND WARRANTIES RELATING TO SECURITIES
AND EXCHANGE MATTERS 46
EXHIBIT G TPCO NON-COMPETE 48
EXHIBIT H SHAREHOLDER RELEASE 49
EXHIBIT I NON-COMPETE 51
EXHIBIT I REGISTRATION RIGHTS 53
56
