NOTES PURCHASE AGREEMENT by and among FUSHI COPPERWELD, INC. and THE HOLDERS PARTY HERETO Dated: February 26, 2010
Exhibit
10.1
by and
among
and
THE
HOLDERS PARTY HERETO
Dated: February
26, 2010
This
Notes Purchase Agreement (this “Agreement”)
is dated as of February 26, 2010, by and between Fushi Copperweld, Inc.
(formerly known as Fushi International, Inc.), a Nevada corporation (the “Company”),
and the Holders signatory hereto (collectively, “Holders”).
WHEREAS,
the Company originally issued and sold Guaranteed Senior Secured Floating Rate
Notes Due 2012 (the “Notes”)
in the aggregate principal amount of $40,000,000 pursuant to the provisions of
an indenture (the “Indenture”),
dated as of January 25, 2007, among the Company and The Bank of New York Mellon
(formerly known as The Bank of New York), as trustee (the “Trustee”). Terms
used but not defined herein shall have the meaning ascribed to such terms in the
Indenture;
WHEREAS,
the Holders signatory hereto are all of the Holders under the Indenture and hold
all of the outstanding Notes as of the date hereof;
WHEREAS,
all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Indenture;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Purchase
of Notes.
Subject
to the terms and conditions of this Agreement, the Company agrees to buy from
each Holder and each Holder agrees to sell to the Company on February 26, 2010
(the “Purchase
Date”) the Notes in the original principal amount and for the purchase
price set forth opposite such Holder’s name on Schedule 1 attached hereto
(“Schedule 1”)
(the purchase price shall be equal to 102.0% of the outstanding principal amount
of such Notes plus any accrued and unpaid interest on the Notes to the Purchase
Date, exclusive (the “Purchase
Amount”)).
2. Payment of the Purchase
Amount
The Company shall cause the applicable
Purchase Amount to be paid to the Holders on the Purchase Date by remitting such
Purchase Amount, in immediately available funds, to the Nominated Account of
such Holder set forth opposite such Holder’s name on Schedule 1.
3. Repurchase,
Delivery and Cancellation.
Subject to receipt by the respective
Holder of the Purchase Amount in the Nominated Account, such Holder shall
transfer or cause to be transferred the Notes set forth opposite its name on
Schedule 1 (i) if through Euroclear, to account number 23520 and (ii) if through
Clearstream, pursuant to the instructions set forth on Schedule 2 attached
hereto, in each case, no later than 10:00 a.m. (New York City time) on the
second Business Day following the Purchase Date.
4. Discharge of
Indenture
Each
Holder acknowledges that, upon purchase of the Notes hereunder and transfer of
the Notes as required under Section 3 of this Agreement, the Company shall
request the satisfaction and discharge of the Indenture by the Trustee pursuant
to Section 11.01 of the Indenture.
5. Representations
and Warranties.
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(a)
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Holders. Each
Holder, individually, represents and warrants, as of the date hereof and
as of the Purchase Date, to the Company as
follows:
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(i)
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Such
Holder is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has all power and
authority required to use its properties and conduct its
business.
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(ii)
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Such
Holder has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by such Holder have been duly
authorized by all necessary action on the part of such
Holder.
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(iii)
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This
Agreement has been duly executed and delivered by such Holder and
constitutes a valid and binding obligation of such Holder, enforceable
against such Holder in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating to
or affecting creditors’ rights generally and by general principles of
equity.
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(iv)
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No
regulatory approval is required to be obtained by such Holder in
connection with the execution, delivery and performance of this Agreement.
The execution, delivery and performance of this Agreement will not (i)
violate any provision of the constitutional documents of such Holder, (ii)
result in the violation of any law applicable to such Holder, (iii)
violate or constitute a default under or give rise to any third parry
rights under any agreement or instrument applicable to such Holder or any
of its assets, or (iv) result in the imposition of any security interest
upon any assets of such Holder, except for such violations, defaults,
third party rights and security interest under clauses (ii), (iii) and
(iv) that, individually and in the aggregate, neither have had nor are
reasonably likely to have a material adverse effect on the ability of such
Holder to perform its obligations under this
Agreement.
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(v)
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Such
Holder has the sole beneficial interest in all the Notes to be sold by it
on the Purchase Date in accordance with this Agreement, in each case, free
and clear of any lien, security interest, claim or encumbrance and will be
selling such Notes free and clear of any lien, security interest, claim or
encumbrance to the Company hereunder. Such Holder does not own,
beneficially or of record, any Notes other than those set forth opposite
its name on Schedule 1.
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(vi)
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Such
Holder has sufficient knowledge and experience in finance, securities,
investments and other business matters to be able to protect its interests
in connection with the transfer contemplated
hereunder.
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(b)
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The
Company. The Company represents and warrants, as of the
date hereof and as of the Purchase Date, to each Holder as
follows:
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(i)
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The
Company has all requisite corporate power and legal authority to execute,
deliver and perform his obligations under this Agreement. The
execution, delivery and performance of this Agreement have been duly
authorized by all necessary action on the part of the Company, including
approval of the Company’s Board of Directors, to the extent
required.
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(ii)
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This
Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating to
or affecting creditors’ rights generally and by general principles of
equity.
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(iii)
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No
regulatory approval is required to be obtained by the Company in
connection with the execution, delivery and performance of this Agreement.
The execution, delivery and performance of this Agreement will not (i)
violate any provision of the constitutional documents of the Company, (ii)
result in the violation of any law applicable to the Company, (iii)
violate or constitute a default under or give rise to any third party
rights under any agreement or instrument applicable to the Company or any
of its assets, or (iv) result in the imposition of any security interest
upon any assets of the Company, except for such violations, defaults,
third party rights and security interest under clauses (ii), (iii) and
(iv) that, individually and in the aggregate, neither have had nor are
reasonably likely to have a material adverse effect on the ability of
Company to perform his obligations under this
Agreement.
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6. Miscellaneous.
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(a)
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Notices
given pursuant to any provision of this Agreement shall be addressed as
follows: (i) if to the Company, to the attention of: Wenbing ▇▇▇▇▇ ▇▇▇▇,
President, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ Bing
2, Beijing People’▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, Fax:
(▇▇) ▇▇ ▇▇▇▇
▇▇▇▇, with a copy to Loeb
& Loeb LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. and (ii) if to a
Holder, to the address set forth on such Holder’s signature page
hereto.
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(b)
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This
Agreement has been and is made solely for the benefit of and shall be
binding upon each of the parties to this Agreement, and their respective
heirs, executors, administrators, successors and assigns, all as and to
the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this
Agreement.
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(c)
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THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
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(d)
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Each
of the parties hereto agrees that any suit, action or proceeding against
such party arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State or U.S. federal court
in The City of New York and County of New York, and waives any objection
which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of
such courts in any suit, action or
proceeding.
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(e)
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The
parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement.
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(f)
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No
failure to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or
remedy.
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(g)
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This
Agreement may be signed in various counterparts which together shall
constitute one and the same
instrument.
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(h)
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The
headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning of any provision of this
Agreement.
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(i)
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If
any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, in each case, to the
extent permitted by applicable law, and the parties hereto shall use their
best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed
the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal,
void or unenforceable, to the extent permitted by applicable
law.
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(j)
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This
Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given; provided that
the same are in writing and signed by all of the signatories
hereto.
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(k)
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Each
Holder hereby agrees as follows:
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(i)
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Each
Holder shall, at the cost of the Company, execute and shall, in its
capacity as a Holder of the Notes, direct the Trustee to execute such
further documents and agreements as the Company reasonably requests to
effectuate the terms of this Agreement or consummate the transactions
contemplated hereby;
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(ii)
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Upon
the Company’s payment in full of the Purchase Amount in accordance with
this Agreement, each Holder agrees and acknowledges that it shall have no
further interest in the Notes or the Indenture and that the obligations of
the Company to such Holder arising from the Indenture shall have been paid
in full;
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(iii)
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With
respect to the Notes to be sold in accordance with this Agreement, each
Holder shall not, for three Business Days after the date of this
Agreement, (x) sell, transfer, pledge, convey, or otherwise dispose of its
interest in such Notes (in whole or in part) other than to the Company as
provided in this Agreement or (y) exercise, or encourage, cause, direct,
or instruct the Trustee to exercise, any rights or remedies that the
Holders have against the Company under the
Indenture;
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(iv)
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Subject
to payment in full of the Purchase Amount, each Holder, as the Holder of
the Notes, from the date hereof, by executing this
Agreement, agrees and acknowledges that the execution and
performance by the Company under this Agreement shall not be deemed a
breach, Default or Event of Default under the Indenture or any related
agreement, instrument or document;
and
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(v)
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In
the event the Company does not comply with any of its obligations under
this Agreement, each Holder’s agreements set forth in clauses (i) through
(iv) above in this Section 6(k) shall be null and void ab initio and of no
force and effect, and any waiver provided by such Holder shall be
rescinded.
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IN
WITNESS WHEREOF, the Company and the Holders have executed this Agreement as of
the date set forth above.
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COMPANY:
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By:
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/s/ Wenbing ▇▇▇▇▇ ▇▇▇▇ | |
| Name: Wenbing ▇▇▇▇▇ ▇▇▇▇ | |||
| Title: President | |||
[HOLDERS:]
______________________________,
as a Holder
By:
______________________________________
Name:
Title:
Address for Notices:
SCHEDULE
1
[Intentionally
Omitted]
