Exhibit 10.9
Exhibit H
TRANSITION SERVICES
AGREEMENT
This Transition Services Agreement
(this “ Agreement ”), dated as of
[ ], 2006,
is by and between Apolo Mecanica e Estruturas S.A., a corporation (
sociedade anônima/stock corporation ), organized under
the laws of the Federative Republic of Brazil, with head offices in
the city of Rio de Janeiro, State of Rio de Janeiro, at Av.
Chrisótomo Pimentel de Oliveira, No. 2651, Pavuna, CEP
21650-000, duly enrolled with the CNPJ under No.
33.017.088/0001-03, herein represented by its undersigned legal
representatives, duly authorized as they solely declare (the
“ Company ”) and Lone Star Steel Company, L.P.,
a Delaware limited partnership, herein represented by its
undersigned legal representatives, duly authorized as they solely
declare (“ LSS ”).
RECITALS
WHEREAS, the Company, Apolo Tubos e
Equipamentos S.A., Lone Star Brazil Holdings 2 Ltda. (“
LSB 2 ”), Lone Star Technologies, Inc., GPC
Participacoes S.A., and Cirrus Participacoes Ltda have entered into
that certain Contribution Agreement, dated as of
[ ],
2006 (with all addenda thereto, the “ Contribution
Agreement ”), pursuant to which LSB 2 has agreed to
contribute the LSB 2 Investment to the Company in exchange for 50%
of the outstanding Common Shares of the Company;
WHEREAS, the Company desires to
obtain from LSS, on the terms and conditions set forth herein,
certain services in connection with its operation of the business
of the Company for the time periods set forth herein, and LSS is
willing to provide to the Company, on the terms and conditions set
forth herein, such services; and
WHEREAS, capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
to such terms in the Contribution Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements set forth
herein, LSS and the Company hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section
1.1
Definitions . As used in this Agreement and the
Schedules attached hereto the following terms will have the
following meanings, applicable both to the singular and the plural
forms of the terms described:
“ Agreement ” has
the meaning ascribed thereto in the preamble hereto, as such
agreement may be amended and supplemented from time to time in
accordance with its terms.
“ Company ” has
the meaning ascribed thereto in the preamble hereto (and any
reference to the “Company” in the Schedules attached
hereto shall include any subsidiaries of the Company).
“ Company Indemnified
Person ” has the meaning ascribed thereto in Section
3.2 .
“ Company Losses
” has the meaning ascribed thereto in Section 3.2
.
“ Confidential
Information ” shall mean non-public information about the
disclosing party’s or any of its Affiliates’ businesses
or activities that is proprietary and confidential, which shall
include, without limitation, all business, financial, technical and
other information of the disclosing party or its Affiliates that is
marked or designated “confidential” or
“proprietary” or that by its nature or the
circumstances surrounding its disclosure should reasonably be
regarded as confidential or proprietary. Confidential
Information includes not only written or other tangible
information, but also information transferred orally, visually,
electronically or by any other means. Confidential
Information shall not include information that (i) is in or
enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party
without restriction on disclosure and, to the receiving
party’s knowledge, without breach of a nondisclosure
obligation, or (iii) is independently developed by the receiving
party.
“ Contribution
Agreement ” has the meaning ascribed thereto in the
recitals to this Agreement.
“ Dispute ” has
the meaning ascribed thereto in Section 5.7 .
“ Event of Force
Majeure ” has the meaning ascribed thereto in Section
2.5 .
“ ICC Rules ” has
the meaning ascribed thereto in Section 5.7 .
“ LSB 2 ” has the
meaning ascribed thereto in the preamble hereto.
“ LSS ” has the
meaning ascribed thereto in the preamble hereto.
“ LSS Entities ”
means LSS and its subsidiaries and Affiliates providing Services
hereunder and “LSS Entity” shall mean any of the LSS
Entities.
“ LSS Indemnified
Person ” has the meaning ascribed thereto in Section
3.1 .
“ LSS Losses ”
has the meaning ascribed thereto in Section 3.1 .
“ Services ” has
the meaning ascribed thereto in Section 2.1 .
“ Term ” has the
meaning ascribed thereto in Section 4.1 .
“ Outsourced Service
” has the meaning ascribed thereto in Section 2.3
.
“ Vendor Contract
” has the meaning ascribed thereto in Section 3.1
.
“ Vendor Services
” shall mean any Services that are third party,
vendor/out-sourced services.
2
Section
1.2
Internal References . References to Articles, Sections
and paragraphs shall refer to the corresponding articles, sections
and paragraphs in this Agreement and references to the parties
shall mean the parties to this Agreement.
ARTICLE II.
PURCHASE AND SALE OF SERVICES
Section
2.1
Provision of Services .
(a)
On the terms and subject
to the conditions of this Agreement and in consideration of the LSB
2 Investment and the Company’s entering into of the
Contribution Agreement, LSS agrees to provide or cause to be
provided to the Company and its subsidiaries, during the Term of
this Agreement, the services described in Schedule I in a
commercially reasonable manner and level of service and, where
applicable, in a manner and relative level of service consistent in
all material respects with that provided by LSS or its subsidiaries
to the Facility and the Company prior to the date of this Agreement
(the “ Services ”). No other consideration
will be due to LSS other than the consideration set forth
hereinabove.
(b)
At its option, LSS may
cause any Service it is required to provide hereunder to be
provided by any other LSS Entity.
Section
2.2
Additional Services . In addition to the Services to
be provided by LSS pursuant to Section 2.1 , if requested by
the Company, and to the extent that LSS and the Company mutually
agree in writing, LSS shall provide additional services to the
Company. The scope and term of any such services and the
other terms and conditions applicable to such services, shall be as
mutually agreed by LSS and the Company. Nothing herein shall
create any obligation on the part of LSS to provide any additional
services.
Section
2.3
Services Performed by Third Parties . At its option,
LSS may cause any Service it is required to provide hereunder to be
provided by any third party that is providing, or may from time to
time provide, the same or similar services for LSS (an “
Outsourced Service ”). LSS shall remain
responsible, in accordance with the terms of this Agreement, for
the performance of any Service it causes to be provided pursuant to
this Section 2.3 .
Section
2.4
Vendor Services . LSS and the Company shall cooperate
and use their commercially reasonable efforts to seek the
continuation of the provision to the Company and its subsidiaries
of the Vendor Services, including, but not limited to, using
commercially reasonable efforts to obtain all necessary consents;
provided, however , that in no event shall LSS or any of its
subsidiaries or Affiliates (other than the Company and its
subsidiaries) be obligated to incur any cost or expenses, pay any
sums, waive any right or agree not to enforce any obligation owed
to it in order to continue such Vendor Services. LSS shall
promptly notify the Company if any Person that provides a Vendor
Service notifies LSS that it intends to terminate or otherwise
cease to provide Vendor Services to, or for the benefit of, the
Company or LSS. Unless LSS has contracted with a third party
for the provision of Vendor Services to the Company and/or its
subsidiaries following the date of this Agreement, nothing herein
shall prevent the Company or its subsidiaries from independently
obtaining any services from third
3
party vendor
service providers and, so long as such services are paid for and
arranged independently by the Company or its subsidiaries, such
services will not constitute Services hereunder.
Section
2.5
Force Majeure . The LSS Entities shall not be required
to provide any Service to the extent the performance of such
Service becomes impracticable as a result of a cause or causes
outside the reasonable control of the LSS Entities or to the extent
the provision of such Service would require the LSS Entities to
violate any applicable Law. The LSS Entities shall have no
obligation to perform or cause the Services to be performed if its
failure to do so is caused by or results from any act of God,
governmental action, natural disaster, strike, failure of essential
equipment or any other cause or circumstance beyond the control of
the LSS Entities or, if applicable, third-party providers of
services to the LSS Entities, and such failure to perform continues
for more than three (3) consecutive days (each, an “ Event
of Force Majeure ”). LSS will notify the Company,
promptly upon becoming aware thereof, of any Event of Force Majeure
affecting the provision of Services by the LSS Entities to the
Company. LSS agrees that following any Event of Force
Majeure, LSS will use its commercially reasonable efforts to
restore such Services as soon as reasonably
practicable.
ARTICLE III.
INDEMNIFICATION
Section
3.1
Indemnification by the Company . The Company shall
indemnify and hold harmless each LSS Entity and their respective
parent entities, directors, officers, agents and employees (each,
an “ LSS Indemnified Person ”) from and against
any claims, damages, losses, obligations, liabilities, costs and
expenses (including, without limitation, reasonable
attorneys’ fees), net of any insurance coverage received by
such LSS Indemnified Person (collectively, “ LSS
Losses ”), suffered by such LSS Indemnified Person and
arising out of or in connection with (i) Services rendered or to be
rendered by any LSS Indemnified Person pursuant to this Agreement
or the transactions contemplated hereby except to the extent that
such LSS Losses are the result of the gross negligence or willful
misconduct of any employee, officer or director of any LSS Entity
and (ii) any contract or arrangement entered into or continued in
the name of the Company or its subsidiaries for a Vendor Service
(each, a “ Vendor Contract ”) to the extent such
Vendor Contract relates to a Vendor Service provided to the Company
o
