UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended March 31, 2013
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number 001-34581
KRATON PERFORMANCE POLYMERS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 20-0411521 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
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15710 John F. Kennedy Blvd. Suite 300 Houston, TX 77032 |
281-504-4700 | |
(Address of principal executive offices, including zip code) | (Registrants telephone number, including area code) |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES x NO ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Securities Exchange Act. (Check one):
Large accelerated filer: | x | Accelerated filer: | ¨ | |||
Non-accelerated filer: | ¨ | Smaller reporting company: | ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). YES ¨ NO x
Number of shares of Kraton Performance Polymers, Inc. Common Stock, $0.01 par value, outstanding as of April 26, 2013: 32,528,011.
on Form 10-Q for
Quarter Ended March 31, 2013
PART I. FINANCIAL INFORMATION | Page | |||||
Item 1 |
6 | |||||
Condensed Consolidated Balance Sheets as of March 31, 2013 and December 31, 2012 |
6 | |||||
Condensed Consolidated Statements of Operations for the three months ended March 31, 2013 and 2012 |
7 | |||||
8 | ||||||
9 | ||||||
Condensed Consolidated Statements of Cash Flows for the three months ended March 31, 2013 and 2012 |
10 | |||||
11 | ||||||
Item 2 |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
32 | ||||
Item 3 |
44 | |||||
Item 4 |
44 | |||||
PART II. OTHER INFORMATION |
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Item 1 |
45 | |||||
Item 1A |
45 | |||||
Item 6 |
46 | |||||
47 |
2
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
Some of the statements in this Quarterly Report on Form 10-Q under the headings Condensed Consolidated Financial Statements and Managements Discussion and Analysis of Financial Condition and Results of Operations and elsewhere contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. We may also make written or oral forward-looking statements in our periodic reports on Forms 10-K, 10-Q and 8-K, in press releases and other written materials and in oral statements made by our officers, directors or employees to third parties. Statements that are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking statements are often characterized by the use of words such as believes, estimates, expects, projects, may, intends, plans or anticipates, or by discussions of strategy, plans or intentions; anticipated benefits of or performance of our products; beliefs regarding opportunities for new, high-margin applications and other innovations; adequacy of cash flows to fund our working capital requirements; our investment in the joint venture with FPCC; debt payments, interest payments, capital expenditures, benefit plan contributions, and income tax obligations; our anticipated 2013 capital expenditures, including the amount of expenditures related to the semi-works facility, compliance with the MACT rule, health, safety and environmental and infrastructure and maintenance projects, projects to optimize the production capabilities of our manufacturing assets and to support our innovation platform; our ability to meet conditions required to ensure full access to our senior secured credit facilities; expectations regarding availability under our loan agreement; expectations regarding our counterparties ability to perform, including with respect to trade receivables; estimates regarding the tax expense of repatriating certain cash and short-term investments related to foreign operations; expectations regarding high-margin applications; our ability to realize certain deferred tax assets and our beliefs with respect to tax positions; our plans and expectations regarding our planned Asia expansion project; estimates related to the useful lives of certain assets for tax purposes; expectations regarding our pension contributions for fiscal year 2013; estimates or expectations related to monomer costs, ending inventory levels and related estimated charges; the outcome and financial impact of legal proceedings; expectations regarding the spread between FIFO and ECRC in future periods; and projections regarding environmental costs and capital expenditures and related operational savings. Such forward-looking statements involve known and unknown risks, uncertainties, and other important factors that could cause the actual results, performance or our achievements, or industry results, to differ materially from historical results, any future results, or performance or achievements expressed or implied by such forward-looking statements. There are a number of risks and uncertainties that could cause our actual results to differ materially from the forward-looking statements contained in this report. Further description of these risks and uncertainties and other important factors are set forth in this report, in our latest Annual Report on Form 10-K, including but not limited to Part I, Item 1A. Risk Factors and Part II, Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations therein, and in our other filings with the Securities and Exchange Commission, and include, but are not limited to, risks related to:
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conditions in the global economy and capital markets; |
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our reliance on LyondellBasell Industries for the provision of significant operating and other services; |
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the failure of our raw materials suppliers to perform their obligations under long-term supply agreements, or our inability to replace or renew these agreements when they expire; |
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limitations in the availability of raw materials we need to produce our products in the amounts or at the prices necessary for us to effectively and profitably operate our business; |
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significant fluctuations in raw material costs may result in volatility in our quarterly operating results and impact the market price of our common stock; |
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competition in our end use markets by other producers of styrenic block copolymers and by producers of products that can be substituted for our products; |
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our ability to produce and commercialize technological innovations; |
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our ability to protect our intellectual property, on which our business is substantially dependent; |
3
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the possibility that our products infringe upon the intellectual property rights of others; |
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seasonality in our business, particularly in our Paving and Roofing end use market; |
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our substantial indebtedness, which could adversely affect our financial condition and prevent us from fulfilling our obligations under the loan agreement and the senior notes; |
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financial and operating constraints related to our indebtedness; |
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the inherently hazardous nature of chemical manufacturing; |
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product liability claims and other lawsuits arising from environmental damage, personal injuries, other damages associated with chemical manufacturing or our products; |
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political, economic and local business risks in the various countries in which we operate; |
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health, safety and environmental laws, including laws that govern our employees exposure to chemicals deemed harmful to humans; |
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regulation of our company or our customers, which could affect the demand for our products or result in increased compliance and other costs; |
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customs, international trade, export control, antitrust, zoning and occupancy and labor and employment laws that could require us to modify our current business practices and incur increased costs; |
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fluctuations in currency exchange rates; |
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we may have additional tax liabilities; |
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our formation of a joint venture to expand HSBC capacity in Asia is subject to risks and uncertainties; |
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our relationship with our employees; |
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loss of key personnel or our inability to attract and retain new qualified personnel; |
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the fact that we generally do not enter into long-term contracts with our customers; |
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a decrease in the fair value of our pension assets could require us to materially increase future funding requirements of the pension plan; |
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domestic or international natural disasters or terrorist attacks may disrupt our operations; |
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Delaware law and some provisions of our organizational documents that make a takeover of our company more difficult; |
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our expectation that we will not pay dividends for the foreseeable future; and |
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we are a holding company with nominal net worth and will depend on dividends and distributions from our subsidiaries to pay any dividends. |
There may be other factors of which we are currently unaware or that we deem immaterial that may cause our actual results to differ materially from the expectations we express in our forward-looking statements. Although we believe the assumptions underlying our forward-looking statements are reasonable, any of these assumptions, and, therefore, also the forward-looking statements based on these assumptions could themselves prove to be inaccurate.
Forward-looking statements are based on current plans, estimates, assumptions and projections, and therefore you should not place undue reliance on them. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update them publicly in light of new information or future events.
4
Presentation of Financial Statements
The terms Kraton, our company, we, our, ours and us as used in this report refer collectively to Kraton Performance Polymers, Inc. and its consolidated subsidiaries. This Form 10-Q includes financial statements and related notes that present the condensed consolidated financial position, results of operations, comprehensive income, and cash flows of Kraton and its subsidiaries. Kraton is a holding company whose only material asset is its investment in its wholly owned subsidiary, Kraton Polymers LLC. Kraton Polymers LLC and its subsidiaries own all of our consolidated operating assets.
5
PART I. FINANCIAL INFORMATION
Item 1. | Condensed Consolidated Financial Statements. |
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
(In thousands, except par value)
March 31,
2013 |
December 31,
2012 |
|||||||
ASSETS |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 136,118 | $ | 223,166 | ||||
Receivables, net of allowances of $485 and $401 |
153,747 | 124,635 | ||||||
Inventories of products |
349,788 | 340,323 | ||||||
Inventories of materials and supplies |
10,469 | 10,331 | ||||||
Deferred income taxes |
7,779 | 7,869 | ||||||
Other current assets |
26,952 | 28,363 | ||||||
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Total current assets |
684,853 | 734,687 | ||||||
Property, plant and equipment, less accumulated depreciation of $320,521 and $311,779 |
378,542 | 381,205 | ||||||
Intangible assets, less accumulated amortization of $71,026 and $68,531 |
61,539 | 63,393 | ||||||
Investment in unconsolidated joint venture |
12,989 | 13,582 | ||||||
Debt issuance costs |
10,533 | 10,846 | ||||||
Deferred income taxes |
67 | 79 | ||||||
Other long-term assets |
26,226 | 25,397 | ||||||
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Total assets |
$ | 1,174,749 | $ | 1,229,189 | ||||
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LIABILITIES AND EQUITY |
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Current liabilities: |
||||||||
Current portion of long-term debt |
$ | 0 | $ | 15,074 | ||||
Accounts payable-trade |
107,960 | 99,167 | ||||||
Other payables and accruals |
32,439 | 50,978 | ||||||
Deferred income taxes |
511 | 513 | ||||||
Due to related party |
22,421 | 16,080 | ||||||
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|
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Total current liabilities |
163,331 | 181,812 | ||||||
Long-term debt, net of current portion |
391,104 | 432,943 | ||||||
Deferred income taxes |
20,787 | 22,273 | ||||||
Other long-term liabilities |
101,488 | 99,946 | ||||||
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|
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Total liabilities |
676,710 | 736,974 | ||||||
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Commitments and contingencies (note 10) |
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Equity: |
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Kraton stockholders equity: |
||||||||
Preferred stock, $0.01 par value; 100,000 shares authorized; none issued |
0 | 0 | ||||||
Common stock, $0.01 par value; 500,000 shares authorized; 32,528 shares issued and outstanding at March 31, 2013; 32,277 shares issued and outstanding at December 31, 2012 |
325 | 323 | ||||||
Additional paid in capital |
357,788 | 354,957 | ||||||
Retained earnings |
167,697 | 171,445 | ||||||
Accumulated other comprehensive loss |
(43,169 | ) | (34,510 | ) | ||||
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Total Kraton stockholders equity |
482,641 | 492,215 | ||||||
Noncontrolling interest |
15,398 | 0 | ||||||
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Total equity |
498,039 | 492,215 | ||||||
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Total liabilities and equity |
$ | 1,174,749 | $ | 1,229,189 | ||||
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See Notes to Condensed Consolidated Financial Statements
6
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except per share data)
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
Sales revenue |
$ | 340,107 | $ | 408,313 | ||||
Cost of goods sold |
280,196 | 332,794 | ||||||
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Gross profit |
59,911 | 75,519 | ||||||
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Operating expenses: |
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Research and development |
7,913 | 7,560 | ||||||
Selling, general and administrative |
26,114 | 26,463 | ||||||
Depreciation and amortization |
15,098 | 15,849 | ||||||
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Total operating expenses |
49,125 | 49,872 | ||||||
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Earnings of unconsolidated joint venture |
134 | 137 | ||||||
Interest expense, net |
13,298 | 6,699 | ||||||
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Income (loss) before income taxes |
(2,378 | ) | 19,085 | |||||
Income tax expense |
1,446 | 2,732 | ||||||
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Consolidated net income (loss) |
(3,824 | ) | 16,353 | |||||
Net loss attributable to noncontrolling interest |
(76 | ) | 0 | |||||
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Net income (loss) attributable to Kraton |
$ | (3,748 | ) | $ | 16,353 | |||
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Earnings (loss) per common share: |
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Basic |
$ | (0.12 | ) | $ | 0.51 | |||
Diluted |
$ | (0.12 | ) | $ | 0.50 | |||
Weighted average common shares outstanding: |
||||||||
Basic |
32,062 | 31,908 | ||||||
Diluted |
32,062 | 32,248 |
See Notes to Condensed Consolidated Financial Statements.
7
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(Unaudited)
(In thousands)
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
Net income (loss) attributable to Kraton |
$ | (3,748 | ) | $ | 16,353 | |||
Other comprehensive income (loss): |
||||||||
Foreign currency translation adjustments, net of tax of $0 |
(9,271 | ) | 10,326 | |||||
(Increase) decrease in unrealized loss on interest rate swaps, net of tax of $0 |
837 | (117 | ) | |||||
Unrealized loss of net investment hedge, net of tax of $0 |
(225 | ) | 0 | |||||
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Other comprehensive income (loss), net of tax |
(8,659 | ) | 10,209 | |||||
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Comprehensive income (loss) attributable to Kraton |
(12,407 | ) | 26,562 | |||||
Comprehensive income attributable to noncontrolling interest |
224 | 0 | ||||||
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Consolidated comprehensive income (loss) |
$ | (12,183 | ) | $ | 26,562 | |||
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See Notes to Condensed Consolidated Financial Statements
8
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(Unaudited)
(In thousands)
Common
Stock |
Additional
Paid in Capital |
Retained
Earnings |
Accumulated
Other Comprehensive Income (Loss) |
Total Kraton
Stockholders Equity |
Noncontrolling
Interest |
Total
Equity |
||||||||||||||||||||||
Balance at December 31, 2011 |
$ | 321 | $ | 347,455 | $ | 187,636 | $ | (17,618 | ) | $ | 517,794 | $ | 0 | $ | 517,794 | |||||||||||||
Net income |
0 | 0 | 16,353 | 0 | 16,353 | 0 | 16,353 | |||||||||||||||||||||
Other comprehensive income |
0 | 0 | 0 | 10,209 | 10,209 | 0 | 10,209 | |||||||||||||||||||||
Exercise of stock options |
1 | 259 | 0 | 0 | 260 | 0 | 260 | |||||||||||||||||||||
Non-cash compensation related to equity awards |
0 | 1,880 | 0 | 0 | 1,880 | 0 | 1,880 | |||||||||||||||||||||
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Balance at March 31, 2012 |
$ | 322 | $ | 349,594 | $ | 203,989 | $ | (7,409 | ) | $ | 546,496 | $ | 0 | $ | 546,496 | |||||||||||||
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Balance at December 31, 2012 |
$ | 323 | $ | 354,957 | $ | 171,445 | $ | (34,510 | ) | $ | 492,215 | $ | 0 | $ | 492,215 | |||||||||||||
Net loss |
0 | 0 | (3,748 | ) | 0 | (3,748 | ) | (76 | ) | (3,824 | ) | |||||||||||||||||
Other comprehensive income (loss) |
0 | 0 | 0 | (8,659 | ) | (8,659 | ) | 300 | (8,359 | ) | ||||||||||||||||||
Consolidation of variable interest entity |
0 | 0 | 0 | 0 | 0 | 15,174 | 15,174 | |||||||||||||||||||||
Exercise of stock options |
2 | 308 | 0 | 0 | 310 | 0 | 310 | |||||||||||||||||||||
Non-cash compensation related to equity awards |
0 | 2,523 | 0 | 0 | 2,523 | 0 | 2,523 | |||||||||||||||||||||
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Balance at March 31, 2013 |
$ | 325 | $ | 357,788 | $ | 167,697 | $ | (43,169 | ) | $ | 482,641 | $ | 15,398 | $ | 498,039 | |||||||||||||
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See Notes to Condensed Consolidated Financial Statements
9
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
Three months ended
March 31, |
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2013 | 2012 | |||||||
CASH FLOWS FROM OPERATING ACTIVITIES |
||||||||
Consolidated net income (loss) |
$ | (3,824 | ) | $ | 16,353 | |||
Adjustments to reconcile consolidated net income (loss) to net cash provided by (used in) operating activities: |
||||||||
Depreciation and amortization |
15,098 | 15,849 | ||||||
Amortization of debt premium |
(38 | ) | 0 | |||||
Amortization of debt issuance costs |
5,781 | 668 | ||||||
(Gain) loss on property, plant and equipment |
(16 | ) | 358 | |||||
Earnings from unconsolidated joint venture, net of dividends received |
288 | 263 | ||||||
Deferred income tax benefit |
(921 | ) | (412 | ) | ||||
Share-based compensation |
2,523 | 1,880 | ||||||
Decrease (increase) in: |
||||||||
Accounts receivable |
(32,078 | ) | (42,411 | ) | ||||
Inventories of products, materials and supplies |
(14,148 | ) | 41,958 | |||||
Other assets |
(588 | ) | (3,342 | ) | ||||
Increase (decrease) in: |
||||||||
Accounts payable-trade |
12,926 | 13,124 | ||||||
Other payables and accruals |
(15,767 | ) | (2,402 | ) | ||||
Other long-term liabilities |
2,196 | 251 | ||||||
Due to related party |
7,794 | 13,939 | ||||||
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Net cash provided by (used in) operating activities |
(20,774 | ) | 56,076 | |||||
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CASH FLOWS FROM INVESTING ACTIVITIES |
||||||||
Purchase of property, plant and equipment |
(14,455 | ) | (8,786 | ) | ||||
Purchase of software |
(707 | ) | (1,643 | ) | ||||
Settlement of net investment hedge |
(2,225 | ) | 0 | |||||
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Net cash used in investing activities |
(17,387 | ) | (10,429 | ) | ||||
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CASH FLOWS FROM FINANCING ACTIVITIES |
||||||||
Proceeds from debt |
40,000 | 101,250 | ||||||
Repayments of debt |
(96,875 | ) | (1,875 | ) | ||||
Capital lease payments |
(950 | ) | 0 | |||||
Contribution from noncontrolling interest |
15,174 | 0 | ||||||
Proceeds from the exercise of stock options |
310 | 260 | ||||||
Debt issuance costs |
(3,117 | ) | (2,728 | ) | ||||
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Net cash provided by (used in) financing activities |
(45,458 | ) | 96,907 | |||||
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Effect of exchange rate differences on cash |
(3,429 | ) | 2,343 | |||||
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Net increase (decrease) in cash and cash equivalents |
(87,048 | ) | 144,897 | |||||
Cash and cash equivalents, beginning of period |
223,166 | 88,579 | ||||||
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Cash and cash equivalents, end of period |
$ | 136,118 | $ | 233,476 | ||||
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Supplemental disclosures: |
||||||||
Cash paid during the period for income taxes, net of refunds received |
$ | 4,643 | $ | 1,281 | ||||
Cash paid during the period for interest, net of capitalized interest |
$ | 13,639 | $ | 9,976 | ||||
Capitalized interest |
$ | 961 | $ | 483 | ||||
Supplemental non-cash disclosures: |
||||||||
Non-cash capital accruals |
$ | 3,495 | $ | 199 |
See Notes to Condensed Consolidated Financial Statements
10
KRATON PERFORMANCE POLYMERS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. General
Description of our Business. We are a leading global producer of styrenic block copolymers (SBCs) and other engineered polymers. We market our products under the Kraton ® , Cariflex TM and NEXAR TM brands. SBCs are highly-engineered synthetic elastomers, which we invented and commercialized almost 50 years ago, that enhance the performance of numerous end use products by imparting greater flexibility, resilience, strength, durability and processability. Our polymers are typically formulated or compounded with other products to achieve improved, customer-specific performance characteristics in a variety of applications. We seek to maximize the value of our product portfolio by emphasizing complex or specialized polymers and innovations that yield higher margins. We sometimes refer to these complex or specialized polymers or innovations as being more differentiated. Our products are found in many everyday applications, including personal care products such as disposable diapers and the rubberized grips of toothbrushes, razor blades and power tools. Our products are also used to impart tack and shear properties in a wide variety of adhesive products and to impart characteristics such as flexibility and durability in sealants and corrosion resistance in coatings. Our paving and roofing applications provide durability, extending road and roof life. We also produce Cariflex isoprene rubber and isoprene rubber latex. Our Cariflex products are highly-engineered, non-SBC synthetic substitutes for natural rubber and natural rubber latex. Our Cariflex products, which have not been found to contain the proteins present in natural rubber latex and are, therefore, not known to cause allergies, are used in applications such as surgical gloves and condoms. We believe the versatility of Cariflex provides opportunities for new, high-margin applications. In addition to Cariflex, we have a portfolio of innovations at various stages of development and commercialization, including polyvinyl chloride alternatives for wire, cable and medical applications; polymers for slush molded automotive and faux leather applications; our Nexar family of membrane polymers for water filtration and breathable fabrics; and synthetic cement formulations and other oilfield applications. We manufacture our polymers at five manufacturing facilities globally, including our flagship facility in Belpre, Ohio, as well as facilities in Germany, France, Brazil and Japan. The facility in Japan is operated by an unconsolidated manufacturing joint venture. The terms Kraton, our company, we, our, ours and us as used in this report refer collectively to Kraton Performance Polymers, Inc. and its consolidated subsidiaries.
Basis of Presentation. The accompanying unaudited condensed consolidated financial statements presented herein are for us and our consolidated subsidiaries, each of which is a wholly-owned subsidiary, except our 50% investment in our joint venture, Kraton Formosa Polymers Corporation (KFPC), located in Mailiao, Taiwan. KFPC is a variable interest entity for which we have determined that we are the primary beneficiary and, therefore, have consolidated into our financial statements. Our 50% investment in our joint venture located in Kashima, Japan is accounted for under the equity method of accounting. All significant intercompany transactions have been eliminated. These interim financial statements should be read in conjunction with the consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2012 and reflect all normal recurring adjustments that are, in the opinion of management, necessary to fairly present our results of operations and financial position. Amounts reported in our Condensed Consolidated Statements of Operations are not necessarily indicative of amounts expected for the respective annual periods or any other interim period, in particular due to the effect of seasonal changes and weather conditions that typically affect our sales into our Paving and Roofing end use market.
Our significant accounting policies have been disclosed in Note 1 Description of Business, Basis of Presentation and Significant Accounting Policies in our most recent Annual Report on Form 10-K. There have been no changes to the policies disclosed therein. The accompanying unaudited condensed consolidated financial statements we present in this report have been prepared in accordance with those policies.
Use of Estimates. The preparation of condensed consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates
11
and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant items subject to such estimates and assumptions include the useful lives of fixed assets; allowances for doubtful accounts and sales returns; the valuation of derivatives, deferred tax assets, property, plant and equipment, inventory, investments and share-based compensation; and liabilities for employee benefit obligations, asset retirement obligations (ARO), income tax uncertainties and other contingencies.
Income Tax in Interim Periods. We conduct operations in separate legal entities in different jurisdictions. As a result, income tax amounts are reflected in these condensed consolidated financial statements for each of those jurisdictions. Tax laws and tax rates vary substantially in these jurisdictions and are subject to change based on the political and economic climate in those countries. We file our tax returns in accordance with our interpretations of each jurisdictions tax laws. We record our tax provision or benefit on an interim basis using the estimated annual effective tax rate. This rate is applied to the current period ordinary income or loss to determine the income tax provision or benefit allocated to the interim period.
Losses from jurisdictions for which no benefit can be realized and the income tax effects of unusual and infrequent items are excluded from the estimated annual effective tax rate. Valuation allowances are provided against the future tax benefits that arise from the losses in jurisdictions for which no benefit can be realized. The effects of unusual and infrequent items are recognized in the impacted interim period as discrete items.
The estimated annual effective tax rate may be significantly affected by nondeductible expenses and by our projected earnings mix by tax jurisdiction. Adjustments to the estimated annual effective income tax rate are recognized in the period during which such estimates are revised.
We have established valuation allowances against a variety of deferred tax assets, including net operating loss carryforwards, foreign tax credits and other income tax credits. Valuation allowances take into consideration our ability to realize these deferred tax assets and reduce the value of such assets to the amount that is deemed more likely than not to be recoverable. Our ability to realize these deferred tax assets is dependent on achieving our forecast of future taxable operating income over an extended period of time. We review our forecast in relation to actual results and expected trends on a quarterly basis. Failure to achieve our operating income targets may change our assessment regarding the recoverability of our net deferred tax assets and such change could result in a valuation allowance being recorded against some or all of our net deferred tax assets. A change in our valuation allowance would impact our income tax expense/benefit and our stockholders equity and could have a significant impact on our results of operations or financial condition in future periods.
2. New Accounting Pronouncements
Adoption of Accounting Standards
We have implemented all new accounting pronouncements that are in effect and that management believes would materially impact our financial statements. Management does not believe that there are any other new accounting pronouncements that have been issued that may have a material impact on our financial position or results of operations.
3. Share-Based Compensation
We account for share-based awards under the provisions of ASC 718, CompensationStock Compensation , which established the accounting for share-based awards exchanged for employee services. Accordingly, share-based compensation cost is measured at the grant date based on the fair value of the award and we expense these costs using the straight-line method over the requisite service period. Share-based compensation expense was $2.5 million and $1.9 million for the three months ended March 31, 2013 and 2012, respectively. We record these costs in selling, general and administrative expenses.
12
4. Detail of Certain Balance Sheet Accounts
March 31,
2013 |
December 31,
2012 |
|||||||
(In thousands) | ||||||||
Inventories of products: |
||||||||
Finished products |
$ | 264,506 | $ | 260,510 | ||||
Work in progress |
6,258 | 6,759 | ||||||
Raw materials |
79,024 | 73,054 | ||||||
|
|
|
|
|||||
Total inventories of products |
$ | 349,788 | $ | 340,323 | ||||
|
|
|
|
|||||
Other payables and accruals: |
||||||||
Employee related |
$ | 9,918 | $ | 13,423 | ||||
Income taxes payable |
758 | 3,638 | ||||||
Other |
21,763 | 33,917 | ||||||
|
|
|
|
|||||
Total other payables and accruals |
$ | 32,439 | $ | 50,978 | ||||
|
|
|
|
|||||
Other long-term liabilities: |
||||||||
Pension and other postretirement benefits |
$ | 85,315 | $ | 84,005 | ||||
Other |
16,173 | 15,941 | ||||||
|
|
|
|
|||||
Total other long-term liabilities |
$ | 101,488 | $ | 99,946 | ||||
|
|
|
|
|||||
Accumulated other comprehensive loss: |
||||||||
Foreign currency translation adjustments |
$ | 17,685 | $ | 26,956 | ||||
Net unrealized loss on interest rate swaps |
0 | (837 | ) | |||||
Net unrealized loss on net investment hedge |
(1,661 | ) | (1,436 | ) | ||||
Pension liability |
(59,193 | ) | (59,193 | ) | ||||
|
|
|
|
|||||
Total accumulated other comprehensive loss |
$ | (43,169 | ) | $ | (34,510 | ) | ||
|
|
|
|
5. Earnings Per Share (EPS)
Basic EPS is computed by dividing net income attributable to Kraton by the weighted-average number of shares outstanding during the period.
Diluted EPS is computed by dividing net income attributable to Kraton by the diluted weighted-average number of shares outstanding during the period and, accordingly, reflects the potential dilution that could occur if securities or other agreements to issue common stock, such as stock options, were exercised, settled or converted into common stock and were dilutive. The diluted weighted-average number of shares used in our diluted EPS calculation is determined using the treasury stock method.
Unvested awards of share-based payments with rights to receive dividends or dividend equivalents, such as our restricted stock awards are considered to be participating securities, and therefore, the two-class method is used for purposes of calculating EPS. Under the two-class method, a portion of net income is allocated to these participating securities and is excluded from the calculation of EPS allocated to common stock. Our restricted stock awards are subject to forfeiture and restrictions on transfer until vested and have identical voting, income and distribution rights to the unrestricted common shares outstanding.
The computation of diluted EPS excludes the effect of the potential exercise of stock options that are anti-dilutive. The number of stock options excluded from the computation was 1,643,950 and 728,708 for the three months ended March 31, 2013 and 2012, respectively. The weighted average restricted share units and performance share units of 37,921 and 20,276, respectively, are not included as a component of diluted EPS for the three months ended March 31, 2013, as they are anti-dilutive.
13
The effects of share-based compensation awards on the diluted weighted-average number of shares outstanding used in calculating diluted EPS are as follows:
Three months ended
March 31, 2013 |
Three months ended
March 31, 2012 |
|||||||||||||||||||||||
Net
Loss Attributable to Kraton |
Weighted
Average Shares Outstanding |
Loss
Per Share |
Net
Income Attributable to Kraton |
Weighted
Average Shares Outstanding |
Earnings
Per Share |
|||||||||||||||||||
( In thousands, except per share data) | (In thousands, except per share data) | |||||||||||||||||||||||
Basic: |
||||||||||||||||||||||||
As reported |
$ | (3,748 | ) | 32,356 | $ | 16,353 | 32,141 | |||||||||||||||||
Amounts allocated to unvested restricted shares |
34 | (294 | ) | (119 | ) | (233 | ) | |||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
Amounts available to common stockholders |
(3,714 | ) | 32,062 | $ | (0.12 | ) | 16,234 | 31,908 | $ | 0.51 | ||||||||||||||
Diluted: |
||||||||||||||||||||||||
Amounts allocated to unvested restricted shares |
(34 | ) | 294 | 119 | 233 | |||||||||||||||||||
Restricted share unitsnon participating |
0 | 0 | 0 | 29 | ||||||||||||||||||||
Stock options added under the treasury stock method |
0 | 0 | 0 | 311 | ||||||||||||||||||||
Amounts reallocated to unvested restricted shares |
34 | (294 | ) | (117 | ) | (233 | ) | |||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
Amounts available to stockholders and assumed conversions |
$ | (3,714 | ) | 32,062 | $ | (0.12 | ) | $ | 16,236 | 32,248 | $ | 0.50 | ||||||||||||
|
|
|
|
|
|
|
|
6. Long-Term Debt
Long-term debt consists of the following:
March 31,
2013 |
December 31,
2012 |
|||||||
(In thousands) | ||||||||
Term loans |
$ | 0 | $ | 96,875 | ||||
Senior secured credit facilities |
40,000 | 0 | ||||||
6.75% unsecured notes |
351,104 | 351,142 | ||||||
|
|
|
|
|||||
Total long-term debt |
391,104 | 448,017 | ||||||
Less current portion of long-term debt |
0 | 15,074 | ||||||
|
|
|
|
|||||
Long-term debt, less current portion |
$ | 391,104 | $ | 432,943 | ||||
|
|
|
|
Senior Secured Credit Facilities. In March 2013, we entered into an asset-based revolving credit facility consisting of a $150.0 million U.S. senior secured revolving credit facility and a $100.0 million Dutch senior secured revolving credit facility (the Senior Secured Credit Facilities). The Senior Secured Credit Facilities replaced the then existing senior secured credit facility and we repaid in full all outstanding amounts payable under the previously existing indebtedness. Borrowing under the Senior Secured Credit Facilities are subject to borrowing base limitations.
We may request up to an aggregate of $100.0 million of additional revolving facility commitments of which up to an aggregate of $40.0 million may be additional Dutch revolving facility commitments, subject to additional conditions described in the Senior Secured Credit Facilities, and provided that the U.S. revolver commitment is at least 60% of the commitments after giving effect to such increase.
14
Kraton Polymers U.S. LLC and, Kraton Polymers Nederland B.V. are the borrowers under the Senior Secured Credit Facilities, and Kraton Performance Polymers, Inc., Kraton Polymers LLC, Elastomers Holdings LLC and Kraton Polymers Capital Corporation are the Guarantors. The Senior Secured Credit Facilities are secured by receivables and inventory. The Senior Secured Credit Facilities terminate on March 27, 2018, however we may, from time to time, request that the lenders extend the maturity of their commitments; provided that at no time shall there be more than four maturity dates under the Senior Secured Credit Facilities. Availability under the Senior Secured Credit Facilities is limited to the lesser of the borrowing base and total commitments (less certain reserves).
U.S. borrowings under the Senior Secured Credit Facilities (other than swingline loans) bear interest at a rate equal to, at the applicable borrowers option, either (a) a base rate determined by reference to the greater of (1) the prime rate of Bank of America, N.A., (2) the federal funds rate plus 0.50% and (3) LIBOR plus 1.0%, or (b) a rate based on LIBOR, in each case plus an applicable margin. U.S. swingline loans shall bear interest at a base rate determined by reference to the greater of (1) the prime rate of Bank of America, N.A., (2) the federal funds rate plus 0.50% or (3) LIBOR plus 1.0%, in each case plus an applicable margin. Dutch borrowings under the Senior Secured Credit Facilities bear interest at a rate equal to, at the applicable borrowers option, either (a) a fluctuating rate, with respect to Euros, Pounds Sterling and Dollars outside of the U.S. and Canada, equal to the rate announced by the European Central Bank and used as a base rate by the local branch of Bank of America in the jurisdiction in which such currency is funded, or (b) a rate based on LIBOR, in each case plus an applicable margin. The applicable margin is subject to a minimum of 0.5% and a maximum of 1.0% with respect to U.S. base rate loans, and a minimum of 1.5% and maximum of 2.0% for foreign base rate borrowings and LIBOR loans. The applicable margin is subject to adjustment based on the borrowers excess availability of the applicable facility for the most recent fiscal quarter. In addition to paying interest on outstanding principal amounts under the Senior Secured Credit Facilities, the borrowers will be required to pay a commitment fee in respect of the unutilized commitments at an annual rate of 0.375%.
The Senior Secured Credit Facilities contain a financial covenant that if either (a) excess availability is less than the greater of (i) 12.5% of the lesser of the commitments and the borrowing base and (ii) $31,250,000 or (b) U.S. availability is less than the greater of (i) 12.5% of the lesser of the U.S. commitments and U.S. borrowing base and (ii) $18,750,000, then following such event, Kraton and its restricted subsidiaries must maintain a fixed charge coverage ratio of at least 1.0 to 1.0 for four fiscal quarters (or for a shorter duration if certain financial conditions are met). The Senior Secured Credit Facilities contain certain customary events of default, including, without limitation, a failure to make payments under the facility, cross-default and cross-judgment default, certain bankruptcy events and certain change of control events.
As of March 31, 2013, our available borrowing capacity was $118.8 million of which $40.0 million was drawn. This includes a Dutch borrowing capacity of $0.0 million as it was pending satisfaction of post-closing conditions related to the lenders security interest in the Dutch assets. As of the date of this filing, our available borrowing capacity was $206.6 million, of which $40.0 million was drawn, which includes $83.7 million of Dutch borrowing capacity that became available when we resolved the post-closing conditions related to the lenders security interest in the Dutch assets. See Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations for further discussion of available liquidity.
6.75% Senior Notes due 2019. Kraton Polymers LLC and its wholly-owned financing subsidiary Kraton Polymers Capital Corporation issued $350.0 million aggregate principal amount of 6.75% senior notes that mature on March 1, 2019 pursuant to an indenture, dated as of February 11, 2011 ($250.0 million senior notes) and supplemental indenture thereto dated as of March 20, 2012 ($100.0 million senior notes). The indenture provides that the notes are general unsecured, senior obligations and will be unconditionally guaranteed on a senior unsecured basis. We pay interest on the notes at 6.75% per annum, semi-annually in arrears on March 1 and September 1 of each year.
15
Debt Maturities . The remaining principal payments on our outstanding total debt as of March 31, 2013, are as follows:
Principal
Payments |
||||
(In thousands) | ||||
December 31: |
||||
2018 |
40,000 | |||
Thereafter |
350,000 | |||
|
|
|||
Total debt |
$ | 390,000 | ||
|
|
See Note 8 Fair Value Measurements, Financial Instruments and Credit Risk for fair value information related to our long-term debt.
7. Debt Issuance Costs
We capitalize the debt issuance costs related to issuing long-term debt and amortize these costs using the effective interest method, except for costs related to revolving debt, which are amortized using the straight-line method. We had net debt issuance costs of $12.5 million and $13.9 million (of which $2.0 million and $3.1 million were included in other current assets) as of March 31, 2013 and December 31, 2012, respectively. In connection with our March 2013 refinancing of our indebtedness, we charged to interest expense $5.0 million of unamortized debt issuance costs related to our previously existing indebtedness and we capitalized $4.4 million of debt issuance costs related to our new indebtedness. We amortized $0.8 million (which excludes the $5.0 million of accelerated amortization) and $0.7 million of debt issuance costs for the three months ended March 31, 2013 and 2012, respectively.
8. Fair Value Measurements, Financial Instruments and Credit Risk
ASC 820, Fair Value Measurements and Disclosures defines fair value, establishes a consistent framework for measuring fair value and expands disclosure requirements about fair value measurements. ASC 820 requires entities to, among other things, maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value.
ASC 820 defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date.
ASC 820 specifies a hierarchy of valuation techniques based on whether the inputs to those valuation techniques are observable or unobservable. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect our market assumptions.
In accordance with ASC 820, these two types of inputs have created the following fair value hierarchy:
|
Level 1Inputs that are quoted prices (unadjusted) for identical assets or liabilities in active markets; |
|
Level 2Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the asset or liability, including: |
|
Quoted prices for similar assets or liabilities in active markets |
|
Quoted prices for identical or similar assets or liabilities in markets that are not active |
|
Inputs other than quoted prices that are observable for the asset or liability |
|
Inputs that are derived principally from or corroborated by observable market data by correlation or other means; and |
16
|
Level 3Inputs that are unobservable and reflect our assumptions used in pricing the asset or liability based on the best information available under the circumstances (e.g., internally derived assumptions surrounding the timing and amount of expected cash flows). |
Recurring Fair Value Measurements . The following tables set forth by level within the fair value hierarchy our financial assets and liabilities that were accounted for at fair value on a recurring basis as of March 31, 2013 and December 31, 2012. These financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. Our assessment of the significance of a particular input to the fair value measurement requires judgment, and may affect the valuation of their fair value and their placement within the fair value hierarchy levels.
Balance Sheet Location |
March 31,
2013 |
Fair Value Measurements at Reporting Date Using | ||||||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||||||||
(In thousands) | ||||||||||||||||||
Retirement plan assetnoncurrent |
Other long-term assets | 1,511 | 1,511 | 0 | 0 | |||||||||||||
Derivative liabilitycurrent |
Other payables and accruals | (9 | ) | 0 | (9 | ) | 0 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Total |
$ | 1,502 | $ | 1,511 | $ | (9 | ) | $ | 0 | |||||||||
|
|
|
|
|
|
|
|
Balance Sheet Location |
December 31,
2012 |
Fair Value Measurements at Reporting Date Using | ||||||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||||||||
(In thousands) | ||||||||||||||||||
Derivative assetcurrent |
Other current assets | $ | 34 | $ | 0 | $ | 34 | $ | 0 | |||||||||
Retirement plan assetnoncurrent |
Other long-term assets | 860 | 860 | 0 | 0 | |||||||||||||
Derivative liabilitycurrent |
Other payables and accruals | (578 | ) | 0 | (578 | ) | 0 | |||||||||||
Derivative liabilitynoncurrent |
Other long-term liabilities | (258 | ) | 0 | (258 | ) | 0 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Total |
$ | 58 | $ | 860 | $ | (802 | ) | $ | 0 | |||||||||
|
|
|
|
|
|
|
|
The use of derivatives creates exposure to credit risk relating to potential losses that could be recognized in the event that the counterparties to these instruments fail to perform their obligations under the contracts. We seek to minimize this risk by limiting our counterparties to major financial institutions with acceptable credit ratings and monitoring the total value of positions with individual counterparties. In the event of a default by one of our counterparties, we may not receive payments provided for under the terms of our derivatives.
The following table presents the carrying values and approximate fair values of our long-term debt as of March 31, 2013 and December 31, 2012:
March 31, 2013 | December 31, 2012 | |||||||||||||||
Carrying
Value |
Fair
Value |
Carrying
Value |
Fair
Value |
|||||||||||||
(In thousands) | ||||||||||||||||
Term loans |
$ | 0 | $ | 0 | $ | 96,875 | $ | 96,875 | ||||||||
Senior secured credit facilities |
$ | 40,000 | $ | 40,000 | $ | 0 | $ | 0 | ||||||||
6.75% unsecured notes |
$ | 351,104 | $ | 365,750 | $ | 351,142 | $ | 364,000 |
The term loans and loan agreements are variable interest rate instruments, and as such, the fair value approximates their carrying value.
17
Financial Instruments
Interest Rate Swap Agreements. Periodically, we enter into interest rate swap agreements to hedge or otherwise protect against interest rate fluctuations on a portion of our variable rate debt. These interest rate swap agreements are designated as cash flow hedges on our exposure to the variability of future cash flows.
In June 2011, we entered into a $75.0 million notional amount interest rate swap agreement with respect to a portion of our outstanding term loans. This agreement was effective on July 15, 2011 and was set to expire on June 15, 2014. However, on March 27, 2013, in connection with the refinancing of our credit facility, we terminated and settled the interest rate swap agreement, and as a result, recognized $0.7 million of interest expense for the three months ended March 31, 2013. We recorded an unrealized loss of $0.1 million in accumulated other comprehensive loss related to the effective portion of this interest rate swap agreement for the three months ended March 31, 2012.
Fair Value Hedges. In April 2012, we entered into a series of non-deliverable forward contracts to reduce our exposure to fluctuations in the Canadian dollar (CAD) against the U.S. dollar associated with the funding of certain capital expenditures. The non-deliverable forward contracts outstanding as of March 31, 2013, had notional amounts of CAD $2.5 million and CAD $1.6 million with settlement dates of July 11, 2013 and August 1, 2013, respectively. Due to an adjustment in the underlying payment schedule, in March 2013, we settled the hedge with a notional amount of CAD $2.5 million with a settlement date of July 11, 2013 and entered into a new hedge with a notional value of CAD $2.5 million with a settlement date of September 9, 2013. We also settled the hedge with the notional value of CAD $1.6 million with a settlement date of August 1, 2013 and entered into a new hedge with a notional value of CAD $1.6 million and a settlement date of October 8, 2013. The ineffective portion of the settlement of theses hedges was immaterial. These non-deliverable forward contracts qualified for hedge accounting and were designated as fair value hedges in accordance with ASC 815-25 Fair Value Hedges. For the effective portion of these hedges, we recorded an aggregate $0.1 million gain, which offset the $0.1 million loss on the exposure to the CAD for the three months ended March 31, 2013.
Net Investment Hedges. During 2012, we entered into a series of non-deliverable forward and foreign currency option contracts to protect our net investment in our European subsidiaries against adverse changes in exchange rates by fixing the U.S. dollar/Euro exchange rate. The notional amounts of these contracts ranged from 50.0 million to 100.0 million with all contracts expiring after thirty days. These contracts qualify for hedge accounting and were designated as net investment hedges in accordance with ASC 815-35 Net Investment Hedges. We recorded an aggregate $0.2 million loss in accumulated other comprehensive loss related to the settlement of the effective portion of the contracts during the three months ended March 31, 2013.
Foreign Currency Hedges. Periodically, we enter into foreign currency agreements to hedge or otherwise protect against fluctuations in foreign currency exchange rates. These agreements typically do not qualify for hedge accounting and gains/losses resulting from both the up-front premiums and/or settlement of the hedges at expiration of the agreements are recognized in the period in which they are incurred. During the three months ended March 31, 2013 and 2012, we entered into a series of foreign currency option and forward contracts to reduce our exposure to exchange rate volatility. The contracts were structured such that the underlying foreign currency exchange gains/losses would be offset by the mark-to-market impact of the hedging instruments and reduce the impact of foreign currency exchange movements throughout the period. These contracts did not qualify for hedge accounting. In the three months ended March 31, 2013 and 2012, we settled these hedges and recorded an aggregate loss of $1.7 million and a gain of $1.1 million, respectively, which offset the underlying foreign currency exchange gains and losses recorded in cost of goods sold.
Credit Risk
We analyze the counterparties financial condition prior to extending credit and we establish credit limits and monitor the appropriateness of those limits on an ongoing basis. We also obtain cash, letters of credit or other acceptable forms of security from customers to provide credit support, where appropriate, based on our financial analysis of the customer and the contractual terms and conditions applicable to each transaction.
18
9. Income Taxes
Our income tax expense was $1.4 million and $2.7 million for the three months ended March 31, 2013 and 2012, respectively. Our effective tax rate was (60.8)%, and 14.3% for the three months ended March 31, 2013 and 2012, respectively. Our effective tax rates differed from the U.S. corporate statutory tax rate of 35.0%, primarily due to the mix of pre-tax income or loss earned in certain jurisdictions and our limited ability to utilize net operating loss carryforwards in certain jurisdictions, primarily in the United States.
As of March 31, 2013 and 2012, a valuation allowance of $97.8 million and $54.1 million, respectively, has been provided for net operating loss carryforwards and other deferred tax assets in certain jurisdictions. We record a valuation allowance when it is more likely than not that some portion or all of the deferred tax assets will not be realized. We increased our valuation allowance by $7.4 million for the three months ended March 31, 2013, of which $7.6 million represents current period net operating losses, partially offset by $0.2 million which represents changes in other comprehensive income (loss). We reduced our valuation allowance by $0.1 million for the three months ended March 31, 2012. Excluding the change in our valuation allowance, our effective tax rate would have been a 259.4% benefit and 15.1% expense for the three months ended March 31, 2013 and 2012, respectively.
As of March 31, 2013 and December 31, 2012, we had total unrecognized tax benefits of $5.5 million and $5.1 million, respectively, related to uncertain foreign tax positions, all of which, if recognized, would impact our effective tax rate. During the three months ended March 31, 2013 and 2012, we had an increase in uncertain tax positions of $0.5 million and $0.8 million, respectively, primarily related to uncertain tax positions in Europe. We recorded interest and penalties related to unrecognized tax benefits within the provision for income taxes. We believe that no current tax positions that have resulted in unrecognized tax benefits will significantly increase or decrease within one year.
We file income tax returns in the U.S. federal jurisdiction and in various state and foreign jurisdictions. For our U.S. federal income tax returns, the statute of limitations has expired through the tax year ended December 31, 2003. As a result of net operating loss carryforwards from 2004, the statute of limitations remains open for all years subsequent to 2003. In addition, open tax years for state and foreign jurisdictions remain subject to examination.
10. Commitments and Contingencies
Legal Proceedings . We received notice from the tax authorities in Brazil assessing R$ 5.4 million in connection with tax credits that were generated from the purchase of certain goods. The credits were subsequently applied against taxes owed. The tax authorities assert that the goods purchased were not eligible to earn a credit. We have appealed this assessment and contend that the tax credits were earned. While the outcome of this proceeding cannot be predicted with certainty, we do not expect this matter to have a material adverse effect upon our financial position, results of operations or cash flows.
We and certain of our subsidiaries, from time to time, are parties to various other legal proceedings, claims and disputes that have arisen in the ordinary course of business. These claims may involve significant amounts, some of which would not be covered by insurance. A substantial settlement payment or judgment in excess of our accruals could have a material adverse effect on our financial position, results of operations or cash flows. While the outcome of these proceedings cannot be predicted with certainty, our management does not expect any of these existing matters, individually or in the aggregate, to have a material adverse effect upon our financial position, results of operations or cash flows.
19
Asset Retirement Obligations.
The changes in the aggregate carrying amount of our ARO liability are as follows:
ARO Liability | ||||
(In thousands) | ||||
Balance at December 31, 2012 |
$ | 9,837 | ||
Accretion expense |
120 | |||
Foreign currency translation |
(118 | ) | ||
|
|
|||
Balance at March 31, 2013 |
$ | 9,839 | ||
|
|
There have been no other material changes to our Commitments and Contingencies disclosed in our most recently filed Annual Report on Form 10-K.
11. Employee Benefits
Retirement Plans. The components of net periodic benefit cost related to U.S. pension benefits are as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
Service cost |
$ | 938 | $ | 825 | ||||
Interest cost |
1,410 | 1,353 | ||||||
Expected return on plan assets |
(1,655 | ) | (1,498 | ) | ||||
Amortization of prior service cost |
1,007 | 630 | ||||||
|
|
|
|
|||||
Net periodic benefit cost |
$ | 1,700 | $ | 1,310 | ||||
|
|
|
|
We made contributions of $1.2 million and $1.3 million to our pension plan in the three months ended March 31, 2013 and 2012, respectively.
The components of net periodic benefit cost related to other post-retirement benefits are as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
Service cost |
$ | 145 | $ | 128 | ||||
Interest cost |
292 | 305 | ||||||
Amortization of prior service cost |
183 | 150 | ||||||
|
|
|
|
|||||
Net periodic benefit cost |
$ | 620 | $ | 583 | ||||
|
|
|
|
12. Industry Segment and Foreign Operations
We operate in one segment for the manufacturing and marketing of engineered polymers. In accordance with the provisions of ASC 280, Segment Reporting , our chief operating decision-maker has been identified as the President and Chief Executive Officer, who reviews operating results to make decisions about allocating resources and assessing performance for the entire company. Since we operate in one segment and in one group of similar products, all financial segment and product line information required by ASC 280 can be found in the condensed consolidated financial statements.
20
We manufacture our products along the following primary product lines based upon polymer chemistry and process technologies:
|
un-hydrogenated SBCs (USBCs); |
|
hydrogenated SBCs (HSBCs); |
|
Cariflex isoprene rubber and isoprene rubber latex; and |
|
compounds. |
Sales revenue for our four primary product lines is as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
USBCs |
$ | 196,773 | $ | 243,192 | ||||
HSBCs |
108,094 | 132,376 | ||||||
Cariflex |
27,029 | 22,645 | ||||||
Compounds |
7,904 | 8,448 | ||||||
Other |
307 | 1,652 | ||||||
|
|
|
|
|||||
$ | 340,107 | $ | 408,313 | |||||
|
|
|
|
For geographic reporting, sales revenue is attributed to the geographic location in which the customers facilities are located. Long-lived assets consist primarily of property, plant and equipment, which are attributed to the geographic location in which they are located and are presented at historical cost.
Sales revenue and long-lived assets by geographic region are as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
Sales revenue: |
||||||||
United States |
$ | 113,308 | $ | 150,250 | ||||
Germany |
43,381 | 49,617 | ||||||
China |
18,690 | 19,845 | ||||||
Japan |
17,051 | 19,362 | ||||||
Brazil |
13,897 | 14,154 | ||||||
Italy |
12,471 | 14,094 | ||||||
France |
11,834 | 14,035 | ||||||
Belgium |
10,682 | 14,005 | ||||||
United Kingdom |
10,474 | 11,863 | ||||||
Thailand |
9,982 | 7,981 | ||||||
Netherlands |
9,637 | 13,290 | ||||||
Taiwan |
6,446 | 6,792 | ||||||
Malaysia |
5,753 | 5,680 | ||||||
Turkey |
5,676 | 9,669 | ||||||
Mexico |
4,874 | 3,270 | ||||||
Canada |
4,760 | 5,444 | ||||||
Argentina |
4,665 | 4,785 | ||||||
Sweden |
4,073 | 3,310 | ||||||
South Korea |
3,223 | 4,430 | ||||||
Australia |
2,842 | 3,116 | ||||||
All other countries |
26,388 | 33,321 | ||||||
|
|
|
|
|||||
$ | 340,107 | $ | 408,313 | |||||
|
|
|
|
21
March 31,
2013 |
December 31,
2012 |
|||||||
(In thousands) | ||||||||
Long-lived assets, at cost: |
||||||||
United States |
$ | 413,223 | $ | 411,969 | ||||
France |
116,727 | 118,275 | ||||||
Brazil |
81,432 | 79,585 | ||||||
Germany |
53,980 | 55,581 | ||||||
Netherlands |
14,657 | 15,255 | ||||||
Taiwan |
6,516 | 0 | ||||||
China |
6,487 | 5,906 | ||||||
Japan |
1,803 | 1,978 | ||||||
All other countries |
4,238 | 4,435 | ||||||
|
|
|
|
|||||
$ | 699,063 | $ | 692,984 | |||||
|
|
|
|
13. Related Party Transactions
We own a 50% equity investment in a SBC manufacturing joint venture with JSR Corporation (JSR) under the name of Kraton JSR Elastomers K.K. (KJE) located in Kashima, Japan. We and JSR separately, but with equal rights, participate in distributions in the sales of the thermoplastic rubber produced by KJE.
The aggregate amounts of related-party transactions were as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
Purchases from related party |
$ | 12,671 | $ | 17,878 |
Our due to related party is solely related to our commercial arrangement associated with KJE, which requires payment by each party within 150 days of invoice.
14. Variable Interest Entity
In February 2013, we executed definitive agreements providing for a 50/50 joint venture with Formosa Petrochemical Corporation (FPCC) to build, own and operate a 30 kiloton HSBC plant at FPCCs petrochemical site in Mailiao, Taiwan. The joint venture, Kraton Formosa Polymers Corporation (KFPC), is a Taiwan entity, with each of Kraton and FPCC having equal representation on the board. Both Kraton and FPCC made an initial investment of approximately $15.2 million at inception. We have exclusive rights to purchase all production from KFPC. Additionally, we will be obligated to purchase a minimum volume each year, with the minimum obligation increasing over the first three years the plant is operational. As such, we have determined that we are the primary beneficiary of this variable interest entity and, therefore, have consolidated KFPC in our financial statements as of and for the quarter ended March 31, 2013 and have reflected FPCCs ownership as a noncontrolling interest.
22
The following table summarizes the fair value of KFPC assets and liabilities as of February 27, 2013 recorded upon initial consolidation in our condensed consolidated balance sheet and the carrying amounts of such assets and liabilities as of March 31, 2013, before intercompany eliminations.
March 31,
2013 |
February 27,
2013 |
|||||||
(In thousands) | ||||||||
Cash and cash equivalents |
$ | 30,966 | $ | 30,348 | ||||
Property, plant and equipment |
6,516 | 0 | ||||||
Intangible assets |
9,000 | 0 | ||||||
|
|
|
|
|||||
Total assets |
$ | 46,482 | $ | 30,348 | ||||
|
|
|
|
|||||
Current liabilities |
15,686 | 0 | ||||||
|
|
|
|
|||||
Total liabilities |
$ | 15,686 | $ | 0 | ||||
|
|
|
|
15. Supplemental Guarantor Information
Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, (the Issuers), are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Performance Polymers, Inc. and Elastomers Holdings LLC, a U.S. holding company and wholly-owned subsidiary of Kraton Polymers LLC, collectively, (the Guarantors), fully and unconditionally guarantee on a joint and several basis, the Issuers obligations under the 6.75% senior notes. Our remaining subsidiaries are not guarantors of the 6.75% senior notes. We do not believe that separate financial statements and other disclosures concerning the guarantor subsidiaries would provide any additional information that would be material to investors in making an investment decision.
23
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING BALANCE SHEET
March 31, 2013
(Unaudited)
(In thousands, except par value)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
ASSETS |
||||||||||||||||||||||||
Current assets: |
||||||||||||||||||||||||
Cash and cash equivalents |
$ | 0 | $ | 0 | $ | 47,146 | $ | 88,972 | $ | 0 | $ | 136,118 | ||||||||||||
Receivables, net of allowances of $485 |
0 | 0 | 50,255 | 103,492 | 0 | 153,747 | ||||||||||||||||||
Inventories of products |
0 | 0 | 199,700 | 150,088 | 0 | 349,788 | ||||||||||||||||||
Inventories of materials and supplies |
0 | 0 | 8,188 | 2,281 | 0 | 10,469 | ||||||||||||||||||
Deferred income taxes |
0 | 0 | 5,768 | 2,011 | 0 | 7,779 | ||||||||||||||||||
Other current assets |
0 | 4,484 | 2,240 | 20,228 | 0 | 26,952 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total current assets |
0 | 4,484 | 313,297 | 367,072 | 0 | 684,853 | ||||||||||||||||||
Property, plant and equipment, less accumulated depreciation of $320,521 |
0 | 54,259 | 218,479 | 105,804 | 0 | 378,542 | ||||||||||||||||||
Intangible assets, less accumulated amortization of $71,026 |
0 | 39,344 | 22,195 | 0 | 0 | 61,539 | ||||||||||||||||||
Investment in consolidated subsidiaries |
525,810 | 1,294,407 | 0 | 0 | (1,820,217 | ) | 0 | |||||||||||||||||
Investment in unconsolidated joint venture |
0 | 813 | 0 | 12,176 | 0 | 12,989 | ||||||||||||||||||
Debt issuance costs |
0 | 7,180 | 2,012 | 1,341 | 0 | 10,533 | ||||||||||||||||||
Deferred income taxes |
0 | 0 | 0 | 67 | 0 | 67 | ||||||||||||||||||
Other long-term assets |
0 | 1,132 | 537,820 | 104,891 | (617,617 | ) | 26,226 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total assets |
$ | 525,810 | $ | 1,401,619 | $ | 1,093,803 | $ | 591,351 | $ | (2,437,834 | ) | $ | 1,174,749 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
LIABILITIES AND STOCKHOLDERS AND MEMBERS EQUITY |
||||||||||||||||||||||||
Current liabilities: |
||||||||||||||||||||||||
Accounts payable-trade |
0 | 364 | 49,391 | 58,205 | 0 | 107,960 | ||||||||||||||||||
Other payables and accruals |
0 | 2,002 | 17,395 | 13,042 | 0 | 32,439 | ||||||||||||||||||
Deferred income taxes |
0 | 0 | 0 | 511 | 0 | 511 | ||||||||||||||||||
Due to related party |
0 | 0 | 0 | 22,421 | 0 | 22,421 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total current liabilities |
0 | 2,366 | 66,786 | 94,179 | 0 | 163,331 | ||||||||||||||||||
Long-term debt, net of current portion |
0 | 351,104 | 40,000 | 0 | 0 | 391,104 | ||||||||||||||||||
Deferred income taxes |
0 | 12,112 | 5,768 | 2,907 | 0 | 20,787 | ||||||||||||||||||
Other long-term liabilities |
0 | 510,900 | 91,259 | 116,946 | (617,617 | ) | 101,488 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities |
0 | 876,482 | 203,813 | 214,032 | (617,617 | ) | 676,710 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Commitments and contingencies (note 10) |
||||||||||||||||||||||||
Stockholders and members equity: |
||||||||||||||||||||||||
Preferred stock, $0.01 par value; 100,000 shares authorized; none issued |
0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Common stock, $0.01 par value; 500,000 shares authorized; 32,528 shares issued and outstanding |
325 | 0 | 0 | 0 | 0 | 325 | ||||||||||||||||||
Additional paid in capital |
357,788 | 0 | 0 | 0 | 0 | 357,788 | ||||||||||||||||||
Members equity |
0 | 525,810 | 943,077 | 351,330 | (1,820,217 | ) | 0 | |||||||||||||||||
Retained earnings |
167,697 | 0 | 0 | 0 | 0 | 167,697 | ||||||||||||||||||
Accumulated other comprehensive income (loss) |
0 | (673 | ) | (53,087 | ) | 10,591 | 0 | (43,169 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Kraton stockholders and members equity |
525,810 | 525,137 | 889,990 | 361,921 | (1,820,217 | ) | 482,641 | |||||||||||||||||
Noncontrolling interest |
0 | 0 | 0 | 15,398 | 0 | 15,398 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total stockholders and members equity |
525,810 | 525,137 | 889,990 | 377,319 | (1,820,217 | ) | 498,039 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities and stockholders and members equity |
$ | 525,810 | $ | 1,401,619 | $ | 1,093,803 | $ | 591,351 | $ | (2,437,834 | ) | $ | 1,174,749 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
24
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING BALANCE SHEET
December 31, 2012
(In thousands, except par value)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
ASSETS |
||||||||||||||||||||||||
Current assets: |
||||||||||||||||||||||||
Cash and cash equivalents |
$ | 0 | $ | 0 | $ | 80,903 | $ | 142,263 | $ | 0 | $ | 223,166 | ||||||||||||
Receivables, net of allowances of $401 |
0 | 426 | 44,728 | 79,481 | 0 | 124,635 | ||||||||||||||||||
Inventories of products |
0 | 0 | 180,776 | 159,547 | 0 | 340,323 | ||||||||||||||||||
Inventories of materials and supplies |
0 | 0 | 8,013 | 2,318 | 0 | 10,331 | ||||||||||||||||||
Deferred income taxes |
0 | 0 | 5,768 | 2,101 | 0 | 7,869 | ||||||||||||||||||
Other current assets |
0 | 3,787 | 691 | 23,885 | 0 | 28,363 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total current assets |
0 | 4,213 | 320,879 | 409,595 | 0 | 734,687 | ||||||||||||||||||
Property, plant and equipment, less accumulated depreciation of $311,779 |
0 | 56,626 | 222,956 | 101,623 | 0 | 381,205 | ||||||||||||||||||
Intangible assets, less accumulated amortization of $68,531 |
0 | 41,056 | 22,337 | 0 | 0 | 63,393 | ||||||||||||||||||
Investment in consolidated subsidiaries |
526,725 | 1,258,814 | 0 | 0 | (1,785,539 | ) | 0 | |||||||||||||||||
Investment in unconsolidated joint venture |
0 | 813 | 0 | 12,769 | 0 | 13,582 | ||||||||||||||||||
Debt issuance costs |
0 | 10,846 | 0 | 0 | 0 | 10,846 | ||||||||||||||||||
Deferred income taxes |
0 | 0 | 0 | 79 | 0 | 79 | ||||||||||||||||||
Other long-term assets |
0 | 1,500 | 480,756 | 193,141 | (650,000 | ) | 25,397 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total assets |
$ | 526,725 | $ | 1,373,868 | $ | 1,046,928 | $ | 717,207 | $ | (2,435,539 | ) | $ | 1,229,189 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
LIABILITIES AND STOCKHOLDERS AND MEMBERS EQUITY |
||||||||||||||||||||||||
Current liabilities: |
||||||||||||||||||||||||
Current portion of long-term debt |
$ | 0 | $ | 15,074 | $ | 0 | $ | 0 | $ | 0 | $ | 15,074 | ||||||||||||
Accounts payable-trade |
0 | 2,072 | 44,304 | 52,791 | 0 | 99,167 | ||||||||||||||||||
Other payables and accruals |
0 | 8,995 | 21,744 | 20,239 | 0 | 50,978 | ||||||||||||||||||
Due to related party |
0 | 0 | 0 | 16,080 | 0 | 16,080 | ||||||||||||||||||
Deferred income taxes |
0 | 0 | 0 | 513 | 0 | 513 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total current liabilities |
0 | 26,141 | 66,048 | 89,623 | 0 | 181,812 | ||||||||||||||||||
Long-term debt, net of current portion |
0 | 432,943 | 0 | 0 | 0 | 432,943 | ||||||||||||||||||
Deferred income taxes |
0 | 12,206 | 5,768 | 4,299 | 0 | 22,273 | ||||||||||||||||||
Other long-term liabilities |
0 | 377,032 | 89,825 | 283,089 | (650,000 | ) | 99,946 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities |
0 | 848,322 | 161,641 | 377,011 | (650,000 | ) | 736,974 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Commitments and contingencies (note 10) |
||||||||||||||||||||||||
Stockholders and members equity: |
||||||||||||||||||||||||
Preferred stock, $0.01 par value; 100,000 shares authorized; none issued |
0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Common stock, $0.01 par value; 500,000 shares authorized; 32,277 shares issued and outstanding |
323 | 0 | 0 | 0 | 0 | 323 | ||||||||||||||||||
Additional paid in capital |
354,957 | 0 | 0 | 0 | 0 | 354,957 | ||||||||||||||||||
Members equity |
0 | 526,725 | 938,374 | 320,440 | (1,785,539 | ) | 0 | |||||||||||||||||
Retained earnings |
171,445 | 0 | 0 | 0 | 0 | 171,445 | ||||||||||||||||||
Accumulated other comprehensive income (loss) |
0 | (1,179 | ) | (53,087 | ) | 19,756 | 0 | (34,510 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total stockholders and members equity |
526,725 | 525,546 | 885,287 | 340,196 | (1,785,539 | ) | 492,215 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities and stockholders and members equity |
$ | 526,725 | $ | 1,373,868 | $ | 1,046,928 | $ | 717,207 | $ | (2,435,539 | ) | $ | 1,229,189 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
25
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
Three months ended March 31, 2013
(Unaudited)
(In thousands)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Sales revenue |
$ | 0 | $ | 0 | $ | 177,582 | $ | 203,551 | $ | (41,026 | ) | $ | 340,107 | |||||||||||
Cost of goods sold |
0 | 1,733 | 148,119 | 171,370 | (41,026 | ) | 280,196 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit |
0 | (1,733 | ) | 29,463 | 32,181 | 0 | 59,911 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Operating expenses: |
||||||||||||||||||||||||
Research and development |
0 | 0 | 4,343 | 3,570 | 0 | 7,913 | ||||||||||||||||||
Selling, general and administrative |
0 | 2 | 18,971 | 7,141 | 0 | 26,114 | ||||||||||||||||||
Depreciation and amortization |
0 | 4,079 | 7,534 | 3,485 | 0 | 15,098 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses |
0 | 4,081 | 30,848 | 14,196 | 0 | 49,125 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Earnings (loss) in consolidated subsidiaries |
(3,824 | ) | 17,786 | 0 | 0 | (13,962 | ) | 0 | ||||||||||||||||
Earnings of unconsolidated joint venture |
0 | 0 | 0 | 134 | 0 | 134 | ||||||||||||||||||
Interest expense (income), net |
0 | 15,890 | (3,576 | ) | 984 | 0 | 13,298 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Income (loss) before income taxes |
(3,824 | ) | (3,918 | ) | 2,191 | 17,135 | (13,962 | ) | (2,378 | ) | ||||||||||||||
Income tax expense (benefit) |
0 | (94 | ) | 11 | 1,529 | 0 | 1,446 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Consolidated net income (loss) |
(3,824 | ) | (3,824 | ) | 2,180 | 15,606 | (13,962 | ) | (3,824 | ) | ||||||||||||||
Net loss attributable to noncontrolling interest |
0 | 0 | 0 | (76 | ) | 0 | (76 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income (loss) attributable to Kraton |
$ | (3,824 | ) | $ | (3,824 | ) | $ | 2,180 | $ | 15,682 | $ | (13,962 | ) | $ | (3,748 | ) | ||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
26
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
Three months ended March 31, 2012
(Unaudited)
(In thousands)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Sales revenue |
$ | 0 | $ | 0 | $ | 206,221 | $ | 233,628 | $ | (31,536 | ) | $ | 408,313 | |||||||||||
Cost of goods sold |
0 | (1,056 | ) | 170,013 | 195,373 | (31,536 | ) | 332,794 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit |
0 | 1,056 | 36,208 | 38,255 | 0 | 75,519 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Operating expenses: |
||||||||||||||||||||||||
Research and development |
0 | 0 | 4,885 | 2,675 | 0 | 7,560 | ||||||||||||||||||
Selling, general and administrative |
0 | 0 | 18,066 | 8,397 | 0 | 26,463 | ||||||||||||||||||
Depreciation and amortization |
0 | 4,079 | 8,297 | 3,473 | 0 | 15,849 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses |
0 | 4,079 | 31,248 | 14,545 | 0 | 49,872 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Earnings in consolidated subsidiaries |
16,353 | 28,869 | 0 | 0 | (45,222 | ) | 0 | |||||||||||||||||
Earnings of unconsolidated joint venture |
0 | 0 | 0 | 137 | 0 | 137 | ||||||||||||||||||
Interest expense (income), net |
0 | 9,659 | (4,055 | ) | 1,095 | 0 | 6,699 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Income before income taxes |
16,353 | 16,187 | 9,015 | 22,752 | (45,222 | ) | 19,085 | |||||||||||||||||
Income tax expense (benefit) |
0 | (166 | ) | (216 | ) | 3,114 | 0 | 2,732 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
$ | 16,353 | $ | 16,353 | $ | 9,231 | $ | 19,638 | $ | (45,222 | ) | $ | 16,353 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
27
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING STATEMENT OF COMPREHENSIVE INCOME (LOSS)
Three months ended March 31, 2013
(Unaudited)
(In thousands)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Net income (loss) attributable to Kraton |
$ | (3,824 | ) | $ | (3,824 | ) | $ | 2,180 | $ | 15,682 | $ | (13,962 | ) | $ | (3,748 | ) | ||||||||
Other comprehensive income (loss): |
||||||||||||||||||||||||
Foreign currency translation adjustments, net of tax of $0 |
0 | (106 | ) | 0 | (9,165 | ) | 0 | (9,271 | ) | |||||||||||||||
Decrease in unrealized loss on interest rate swaps, net of tax of $0 |
0 | 837 | 0 | 0 | 0 | 837 | ||||||||||||||||||
Unrealized loss of net investment hedge, net of tax of $0 |
0 | (225 | ) | 0 | 0 | 0 | (225 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Other comprehensive income (loss), net of tax |
0 | 506 | 0 | (9,165 | ) | 0 | (8,659 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Comprehensive income (loss) attributable to Kraton |
(3,824 | ) | (3,318 | ) | 2,180 | 6,517 | (13,962 | ) | (12,407 | ) | ||||||||||||||
Comprehensive income attributable to noncontrolling interest |
0 | 0 | 0 | 224 | 0 | 224 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Consolidated comprehensive income (loss) |
$ | (3,824 | ) | $ | (3,318 | ) | $ | 2,180 | $ | 6,741 | $ | (13,962 | ) | $ | (12,183 | ) | ||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
28
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING STATEMENT OF COMPREHENSIVE INCOME
Three months ended March 31, 2012
(Unaudited)
(In thousands)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Net income attributable to Kraton |
$ | 16,353 | $ | 16,353 | $ | 9,231 | $ | 19,638 | $ | (45,222 | ) | $ | 16,353 | |||||||||||
Other comprehensive income (loss): |
||||||||||||||||||||||||
Foreign currency translation adjustments, net of tax of $0 |
0 | (66 | ) | (1 | ) | 10,393 | 0 | 10,326 | ||||||||||||||||
Increase in unrealized loss on interest rate swaps, net of tax of $0 |
0 | (117 | ) | 0 | 0 | 0 | (117 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Other comprehensive income (loss), net of tax |
0 | (183 | ) | (1 | ) | 10,393 | 0 | 10,209 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Consolidated comprehensive income |
$ | 16,353 | $ | 16,170 | $ | 9,230 | $ | 30,031 | $ | (45,222 | ) | $ | 26,562 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
29
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Three months ended March 31, 2013
(Unaudited)
(In thousands)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Cash flows provided by (used in) operating activities |
$ | 0 | $ | 34,273 | $ | (99,572 | ) | $ | 44,525 | $ | 0 | $ | (20,774 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows provided by (used in) investing activities: |
||||||||||||||||||||||||
Repayments of intercompany loans |
0 | 64,517 | 0 | 0 | (64,517 | ) | 0 | |||||||||||||||||
Purchase of property, plant and equipment |
0 | 0 | (4,060 | ) | (10,395 | ) | 0 | (14,455 | ) | |||||||||||||||
Purchase of software |
0 | 0 | (641 | ) | (66 | ) | 0 | (707 | ) | |||||||||||||||
Settlement of net investment hedge |
0 | (2,225 | ) | 0 | 0 | 0 | (2,225 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) investing activities |
0 | 62,292 | (4,701 | ) | (10,461 | ) | (64,517 | ) | (17,387 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows provided by (used in) financing activities: |
||||||||||||||||||||||||
Proceeds from debt |
0 | 0 | 40,000 | 0 | 0 | 40,000 | ||||||||||||||||||
Repayments of debt |
0 | (96,875 | ) | 0 | 0 | 0 | (96,875 | ) | ||||||||||||||||
Capital lease payments |
0 | 0 | (950 | ) | 0 | 0 | (950 | ) | ||||||||||||||||
Cash contributions from member |
0 | 310 | 0 | 0 | (310 | ) | 0 | |||||||||||||||||
Cash distributions to member |
(310 | ) | 0 | 0 | 0 | 310 | 0 | |||||||||||||||||
Contribution from noncontrolling interest |
0 | 0 | 0 | 15,174 | 0 | 15,174 | ||||||||||||||||||
Proceeds from the exercise of stock options |
310 | 0 | 0 | 0 | 0 | 310 | ||||||||||||||||||
Debt issuance costs |
0 | 0 | (1,870 | ) | (1,247 | ) | 0 | (3,117 | ) | |||||||||||||||
Proceeds from (repayments of) intercompany loans |
0 | 0 | 33,336 | (97,853 | ) | 64,517 | 0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) financing activities |
0 | (96,565 | ) | 70,516 | (83,926 | ) | 64,517 | (45,458 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Effect of exchange rate differences on cash |
0 | 0 | 0 | (3,429 | ) | 0 | (3,429 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net decrease in cash and cash equivalents |
0 | 0 | (33,757 | ) | (53,291 | ) | 0 | (87,048 | ) | |||||||||||||||
Cash and cash equivalents, beginning of period |
0 | 0 | 80,903 | 142,263 | 0 | 223,166 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash and cash equivalents, end of period |
$ | 0 | $ | 0 | $ | 47,146 | $ | 88,972 | $ | 0 | $ | 136,118 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
30
KRATON PERFORMANCE POLYMERS, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Three months ended March 31, 2012
(Unaudited)
(In thousands)
Kraton |
Kraton
Polymers LLC (1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Cash flows provided by (used in) operating activities |
$ | 0 | $ | (13,595 | ) | $ | 49,553 | $ | 20,118 | $ | 0 | $ | 56,076 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows used in investing activities: |
||||||||||||||||||||||||
Proceeds from intercompany loans |
0 | (83,312 | ) | 0 | 0 | 83,312 | 0 | |||||||||||||||||
Purchase of property, plant and equipment |
0 | 0 | (6,282 | ) | (2,504 | ) | 0 | (8,786 | ) | |||||||||||||||
Purchase of software |
0 | 0 | (1,642 | ) | (1 | ) | 0 | (1,643 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash used in investing activities |
0 | (83,312 | ) | (7,924 | ) | (2,505 | ) | 83,312 | (10,429 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows provided by financing activities: |
||||||||||||||||||||||||
Proceeds from debt |
0 | 101,250 | 0 | 0 | 0 | 101,250 | ||||||||||||||||||
Repayments of debt |
0 | (1,875 | ) | 0 | 0 | 0 | (1,875 | ) | ||||||||||||||||
Cash contributions from member |
0 | 260 | 0 | 0 | (260 | ) | 0 | |||||||||||||||||
Cash distributions to member |
(260 | ) | 0 | 0 | 0 | 260 | 0 | |||||||||||||||||
Proceeds from the exercise of stock options |
260 | 0 | 0 | 0 | 0 | 260 | ||||||||||||||||||
Debt issuance costs |
0 | (2,728 | ) | 0 | 0 | 0 | (2,728 | ) | ||||||||||||||||
Proceeds from intercompany loans |
0 | 0 | 58,129 | 25,183 | (83,312 | ) | 0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by financing activities |
0 | 96,907 | 58,129 | 25,183 | (83,312 | ) | 96,907 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Effect of exchange rate differences on cash |
0 | 0 | 0 | 2,343 | 0 | 2,343 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net increase in cash and cash equivalents |
0 | 0 | 99,758 | 45,139 | 0 | 144,897 | ||||||||||||||||||
Cash and cash equivalents, beginning of period |
0 | 0 | 6,030 | 82,549 | 0 | 88,579 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash and cash equivalents, end of period |
$ | 0 | $ | 0 | $ | 105,788 | $ | 127,688 | $ | 0 | $ | 233,476 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
16. Subsequent Events
We have evaluated significant events and transactions that occurred after the balance sheet date and determined that there were no events or transactions other than those disclosed above that would require recognition or disclosure in our condensed consolidated financial statements for the period ended March 31, 2013.
31
Item 2. | Managements Discussion and Analysis of Financial Condition and Results of Operations. |
INTRODUCTION
You should read the following discussion of our financial condition and results of operations with our audited consolidated financial statements and related notes thereto included in our Annual Report on Form 10-K as of and for the year ended December 31, 2012. This discussion contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, the risk factors discussed in the Risk Factors section of our most recent Form 10-K, as well as in Factors Affecting Our Results of Operations and elsewhere in this Form 10-Q. Actual results may differ materially from those contained in any forward-looking statements.
OVERVIEW
We are a leading global producer of styrenic block copolymers (SBCs) and other engineered polymers. We market our products under the Kraton ® , Cariflex TM and NEXAR TM brands. SBCs are highly-engineered synthetic elastomers, which we invented and commercialized almost 50 years ago, that enhance the performance of numerous end use products by imparting greater flexibility, resilience, strength, durability and processability. Our polymers are typically formulated or compounded with other products to achieve improved, customer-specific performance characteristics in a variety of applications. We seek to maximize the value of our product portfolio by emphasizing complex or specialized polymers and innovations that yield higher margins. We sometimes refer to these complex or specialized polymers or innovations as being more differentiated. Our products are found in many everyday applications, including personal care products such as disposable diapers and the rubberized grips of toothbrushes, razor blades and power tools. Our products are also used to impart tack and shear properties in a wide variety of adhesive products and to impart characteristics such as, flexibility and durability in sealants and corrosion resistance in coatings. Our paving and roofing applications provide durability, extending road and roof life. We also produce Cariflex isoprene rubber and isoprene rubber latex. Our Cariflex products are highly-engineered, non-SBC synthetic substitutes for natural rubber and natural rubber latex. Our Cariflex products, which have not been found to contain the proteins present in natural rubber latex and are, therefore, not known to cause allergies, are used in applications such as surgical gloves and condoms. We believe the versatility of Cariflex provides opportunities for new, high margin applications. In addition to Cariflex, we have a portfolio of innovations at various stages of development and commercialization, including polyvinyl chloride alternatives for wire, cable and medical applications; polymers for slush molded automotive and faux leather applications; our NEXAR family of membrane polymers for water filtration and breathable fabrics; and synthetic cement formulations and other oilfield applications.
Our products are manufactured along the following primary product lines based upon polymer chemistry and process technologies:
|
un-hydrogenated SBCs (USBCs); |
|
hydrogenated SBCs (HSBCs); |
|
Cariflex isoprene rubber (IR) and isoprene rubber latex (IRL); and |
|
compounds. |
The majority of worldwide SBC production is dedicated to USBCs, which are primarily used in paving and roofing, adhesives, sealants and coatings and footwear applications. HSBCs, which are significantly more complex and capital-intensive to manufacture than USBCs, are primarily used in more differentiated applications, such as soft touch and flexible materials, personal hygiene products, medical products, automotive components and certain adhesives and sealant applications.
32
Three months ended
March 31, |
||||||||
Product Line Sales Revenue: |
2013 | 2012 | ||||||
USBCs |
57.9 | % | 59.6 | % | ||||
HSBCs |
31.8 | % | 32.4 | % | ||||
Cariflex |
7.9 | % | 5.5 | % | ||||
Compounds |
2.3 | % | 2.1 | % | ||||
Other |
0.1 | % | 0.4 | % |
Three months ended
March 31, |
||||||||
End Use Markets |
2013 | 2012 | ||||||
Advanced Materials |
28.4 | % | 25.9 | % | ||||
Adhesives, Sealants and Coatings |
38.7 | % | 36.7 | % | ||||
Paving and Roofing |
24.9 | % | 31.5 | % | ||||
Cariflex |
7.9 | % | 5.5 | % | ||||
Other |
0.1 | % | 0.4 | % |
2013 First Quarter Financial Overview
|
Sales volume was 78.2 kilotons in the first quarter of 2013 compared to 89.6 kilotons in the first quarter of 2012, a decrease of 12.7%. |
|
Sales revenue decreased $68.2 million in the first quarter of 2013 compared to the first quarter of 2012, primarily due to decreased sales volume of $51.9 million, global product sales price decreases of $9.6 million associated with the decline in raw material costs and the negative impact from changes in foreign currency exchange rates of $5.3 million. |
|
Gross profit was $59.9 million in the first quarter of 2013 compared to $75.5 million in the first quarter of 2012. Included in the period-over-period decline of $15.6 million is a $3.9 million negative impact associated with the spread between the first-in, first-out (FIFO) basis of accounting and estimated current replacement cost (ECRC). Net of the impact of this spread, gross profit at ECRC was $60.4 million in the first quarter of 2013 compared to $72.1 million in the first quarter of 2012. |
|
Adjusted EBITDA was $28.7 million in the first quarter of 2013 compared to $43.0 million in the first quarter of 2012. Included in the period-over-period decline of $14.3 million is a $3.9 million negative impact associated with the spread between FIFO and ECRC. Net of the impact of the spread, Adjusted EBITDA at ECRC was $29.2 million in the first quarter of 2013 compared to $39.6 million in the first quarter of 2012. |
|
Net loss attributable to Kraton was $3.7 million or $0.12 per diluted share for the three months ended March 31, 2013 compared to net income of $16.4 million or $0.50 per diluted share for the three months ended March 31, 2012. Diluted earnings per share were lower by approximately $0.19 per share in the first quarter of 2013 and higher by $0.01 per share in the first quarter of 2012 due to items, which are discussed further in Net income (loss) attributable to Kraton . In addition, the impact of the change in our deferred tax asset valuation allowance increased our diluted loss per share by $0.24 due to our inability to recognize a tax benefit on net operating losses generated in the first quarter of 2013, and had no effect on our diluted earnings per share in the first quarter of 2012. |
|
Cash used in operating activities was $20.8 million in the first quarter of 2013 compared to cash provided by operating activities of $56.1 million in the first quarter of 2012. |
33
RESULTS OF OPERATIONS
Factors Affecting Our Results of Operations
Raw Materials and Product Mix. Our results of operations are directly affected by the cost of raw materials. We use butadiene, styrene and isoprene as our primary raw materials in manufacturing our products. On a FIFO basis, these monomers together represented approximately $162.3 million and $208.0 million or 57.9% and 62.5% of our total cost of goods sold for the three months ended March 31, 2013 and 2012, respectively. Since the cost of our three primary raw materials comprise a significant amount of our total cost of goods sold, our selling prices for our products and therefore our total sales revenue is impacted by movements in our raw material costs, as well as the cost of other inputs. In addition, product mix can have an impact on our overall unit selling prices, since we provide an extensive product offering and therefore experience a wide range of unit selling prices.
The cost of these monomers has generally correlated with changes in energy prices, supply and demand factors, and prices for natural and synthetic rubber. Average purchase prices decreased slightly for butadiene and isoprene and increased for styrene during the three months ended March 31, 2013 compared to the three months ended December 31, 2012. Average purchase prices for butadiene and isoprene were lower during the three months ended March 31, 2013 compared to the same periods in 2012, with an increase in average purchase prices for styrene.
We use the FIFO basis of accounting for inventory and cost of goods sold, and therefore gross profit. In periods of raw material price volatility, reported results under FIFO will differ from what the results would have been if cost of goods sold were based on ECRC. Specifically, in periods of rising raw material costs, reported gross profit will be higher under FIFO than under ECRC. Conversely, in periods of declining raw material costs, reported gross profit will be lower under FIFO than under ECRC. In recognition of the fact that the cost of raw materials affects our results of operations and the comparability of our results of operations we provide the spread between FIFO and ECRC.
|
In the three months ended March 31, 2013, reported results under FIFO were lower than results would have been on an ECRC basis by $0.5 million; and |
|
In the three months ended March 31, 2012, reported results under FIFO were higher than results would have been on an ECRC basis by $3.4 million. |
|
We currently anticipate that our gross profit will reflect a negative spread between FIFO and ECRC of approximately $3.0 million in the second quarter of 2013. This expectation is based on numerous complex and interrelated assumptions with respect to monomer costs, and ending inventory levels in the second quarter and the actual results may be significantly different based on second quarter results. |
International Operations and Currency Fluctuations. We operate a geographically diverse business, serving customers in over 60 countries from five manufacturing facilities on four continents. Although we sell and manufacture our products in many countries, our sales and production costs are mainly denominated in U.S. dollars, Euro, Japanese Yen and Brazilian Real. From time to time, we use hedging strategies to reduce our exposure to currency fluctuations.
We generated our sales revenue from customers located in the following regions.
Three months ended
March 31, |
||||||||
Revenue by Geography: |
2013 | 2012 | ||||||
Americas |
41.9 | % | 44.3 | % | ||||
Europe, Middle East and Africa |
37.2 | % | 37.2 | % | ||||
Asia Pacific |
20.9 | % | 18.5 | % |
34
Our financial results are subject to gains and losses on currency translations, which occur when the financial statements of our foreign operations are translated into U.S. dollars. The financial statements of operations outside the United States where the local currency is considered to be the functional currency are translated into U.S. dollars using the exchange rate at each balance sheet date for assets and liabilities and the average exchange rate for each period for revenues, expenses, gains and losses and cash flows. The effect of translating the balance sheet into U.S. dollars is included as a component of accumulated other comprehensive income (loss). Any appreciation of the functional currencies against the U.S. dollar will increase the U.S. dollar equivalent of amounts of revenues, expenses, gains and losses and cash flows, and any depreciation of the functional currencies will decrease the U.S. dollar amounts reported. Our results of operations are also subject to currency transaction risk. We incur currency transaction risk when we enter into either a purchase or sale transaction using a currency other than the local currency of the transacting entity. The estimated impact from currency fluctuations amounted to pre-tax losses of $1.0 million for the three months ended March 31, 2013 and pre-tax income of $0.3 million for the three months ended March 31, 2012. The primary driver for the increase in our pre-tax losses for the periods presented was the change in foreign currency exchange rates between the Euro and U.S. dollar.
Seasonality. Seasonal changes and weather conditions typically affect the Paving and Roofing end use market generally resulting in higher sales volumes into this end use market in the second and third quarters of the calendar year versus the first and fourth quarters of the calendar year. However, sales volumes into this end use market were higher in the first quarter of 2012, during which demand was higher than normal, particularly in Europe and North America paving.
Recent Developments
Formation of Joint Venture to Expand Hydrogenated Styrenic Block Copolymer (HSBC) Capacity in Asia. On February 27, 2013, we executed definitive agreements providing for a 50/50 joint venture with Formosa Petrochemical Corporation (FPCC) to build, own and operate a 30 kiloton HSBC plant at FPCCs petrochemical site in Mailiao, Taiwan. Each of Kraton and FPCC will fund 50% of the capital needs of the joint venture that are not satisfied through KFPCs debt financing. Kraton has exclusive rights to purchase all production from the plant, which it intends to market world-wide, through its global sales and distribution network. Additionally, Kraton will be obligated to purchase a minimum volume each year, with the minimum obligation increasing over the first three years the plant is operational. The joint venture is a Taiwan entity, with each of Kraton and FPCC having equal representation on the board.
Senior Secured Credit Facilities. In March 2013, we entered into an asset-based revolving credit facility consisting of a U.S. senior secured revolving credit facility of $150.0 million and a Dutch senior secured revolving credit facility of $100.0 million, to replace the then existing senior secured credit facility, and repaid in full all outstanding amounts payable under the previously existing indebtedness. Availability under the senior secured credit facilities will be subject to a borrowing base and the facilities will be secured by receivables and inventory. The senior secured credit facilities include a $100.0 million uncommitted accordion feature that, subject to borrowing base availability and approval of the bank syndicate, could increase aggregate availability to $350.0 million. For more information, please see Managements Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital Resources.
Three Months Ended March 31, 2013 Compared to Three Months Ended March 31, 2012
Sales Revenue
Sales revenue decreased $68.2 million or 16.7% to $340.1 million for the three months ended March 31, 2013 from $408.3 million for the three months ended March 31, 2012. The decrease was largely due to lower sales volumes, which accounted for $51.9 million of the revenue decrease, global product sales price decreases of $9.6 million associated with lower raw material costs and the negative effect of changes in foreign currency exchange rates of $5.3 million. Sales volumes were 78.2 kilotons for the three months ended March 31, 2013 compared to 89.6 kilotons for the three months ended March 31, 2012, a decrease of 12.7%.
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The following factors influenced our sales revenue in each of our end use markets:
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Advanced Materials. Sales revenue decreased $9.1 million or 8.6% to $96.6 million for the three months ended March 31, 2013 from $105.7 million for the three months ended March 31, 2012. Excluding the $1.0 million negative impact from changes in foreign currency exchange rates, the decline in sales revenue would have been $8.1 million or 7.8%. The decline in sales revenue was primarily driven by lower average selling prices, reflective of lower average raw materials costs, primarily butadiene, as sales volumes were essentially unchanged. With respect to innovation sales volume, we experienced growth in personal care and medical applications, offset by lower sales volumes into consumer and wire & cable applications. |
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Adhesives, Sealants and Coatings. Sales revenue decreased $18.6 million or 12.4% to $131.5 million for the three months ended March 31, 2013 from $150.0 million for the three months ended March 31, 2012. Excluding the $2.7 million negative impact from changes in foreign currency exchange rates, the decline in sales revenue would have been $15.9 million or 10.6% due to lower average selling prices indicative of lower raw material costs, primarily butadiene and lower sales volume. The 6.8% decline in sales volume reflects the timing of sales into lubricant additive applications and lower sales into pressure sensitive adhesive and elastic nonwoven applications. |
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Paving and Roofing. Sales revenue decreased $43.7 million or 34.1% to $84.7 million for the three months ended March 31, 2013 from $128.4 million for the three months ended March 31, 2012. Excluding the $0.7 million negative impact from changes in foreign currency exchange rates, sales revenue would have declined $43.0 million or 33.5%. The largest driver of the sales revenue decline was lower sales volumes, which were down 26.9% compared to the year-ago quarter, primarily in the North American and European paving markets and to a lesser extent the European roofing market. Demand in the first quarter 2012 was atypically strong driven by favorable weather conditions and increasing butadiene costs which in turn resulted in volume pulled forward from the second quarter of 2012. In contrast, cold and wet weather limited upside in first quarter 2013 sales volume. The decrease in sales revenue also reflects lower average selling prices resulting from lower average raw material costs compared to the first quarter 2012. |
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Cariflex TM . Sales revenue increased $4.4 million or 19.4% to $27.0 million for the three months ended March 31, 2013 from $22.6 million for the three months ended March 31, 2012. Excluding the $0.9 million negative impact from changes in foreign currency exchange rates, sales revenue would have increased $5.3 million or 23.3%. The revenue increase reflects higher sales volume, mainly in surgical glove, other medical and innovation sales, as well as increased average selling prices across the Cariflex portfolio. |
Cost of Goods Sold
Cost of goods sold decreased $52.6 million or 15.8% to $280.2 million for the three months ended March 31, 2013 from $332.8 million for the three months ended March 31, 2012. The decrease was driven largely by decreased sales volumes in the amount of $36.7 million, decreased raw material costs in the amount of $15.8 million, which includes the year-over-year $3.9 million negative impact associated with the spread between the FIFO and ECRC basis, and $4.5 million from changes in foreign currency exchange rates. In addition, in the first quarter of 2012, our inventory decreased as production volume was less than the atypically strong sales volume. In contrast, in the first quarter of 2013, our production volume exceeded our sales volume in advance of a planned turnaround scheduled for the second quarter of 2013 at one of our facilities. As a result, cost of goods sold was lower period over period by $5.2 million. These decreases were partially offset by $3.0 million in costs related to production issues, $1.1 million of turn around costs and a net $1.2 million benefit recorded in the first quarter of 2012 related to the LBI settlement and property tax dispute in France.
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Gross Profit
Gross profit decreased $15.6 million or 20.7% to $59.9 million for the three months ended March 31, 2013 from $75.5 million for the three months ended March 31, 2012. The decrease was primarily driven by lower sales volumes, decreased global product sales prices and costs related to production issues, partially offset by lower raw material costs and production volumes exceeding sales volumes during the first quarter of 2013.
Operating Expenses
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Research and Development. Research and development expenses increased $0.4 million or 4.7% primarily due to an increase in employee related costs commensurate with additions to staffing levels among our scientists, professional fees, and maintenance and operational costs, partially offset by decreased lease expense for our research and development facilities. Research and development expenses were 2.3% and 1.9% of sales revenue for the three months ended March 31, 2013 and 2012, respectively. |
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Selling, General and Administrative. Selling, general and administrative expenses decreased $0.3 million or 1.3%. The decrease was primarily due to a $0.6 million charge associated with the resolution of a property tax dispute in France during 2012, lower legal expenses of $0.4 million and a $0.2 million decrease in lease expense, partially offset by a $0.5 million increase in costs associated with the joint venture with FPCC and a $0.3 million increase in technology costs. Selling, general and administrative expenses were 7.7% and 6.5% of sales revenue for the three months ended March 31, 2013 and 2012, respectively. |
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Depreciation and Amortization. Depreciation and amortization decreased $0.8 million or 4.7%, primarily due to the extended compliance deadline for our coal-burning boilers at our Belpre, Ohio, facility, pursuant to the revised MACT rule. |
Interest expense, net
Interest expense, net increased $6.6 million or 98.5% to $13.3 million for the three months ended March 31, 2013 from $6.7 million for the three months ended March 31, 2012. The increase was primarily due to a $5.0 million write off of debt issuance costs and a $0.7 million payment to exit a 2011 interest rate swap agreement associated with replacing and refinancing our previous credit facilities.
Income tax expense
Our income tax expense was $1.4 million and $2.7 million for the three months ended March 31, 2013 and 2012, respectively. Our effective tax rate was (60.8)% and 14.3% for the three months ended March 31, 2013 and 2012, respectively. Our effective tax rates differed from the U.S. corporate statutory tax rate of 35.0%, primarily due to the mix of pre-tax income or loss earned in certain jurisdictions and our limited ability to utilize net operating loss carryforwards in certain jurisdictions, primarily in the United States.
We record a valuation allowance when it is more likely than not that some portion or all of the deferred tax assets will not be realized. As of March 31, 2013 and 2012, a valuation allowance of $97.8 million and $54.1 million, respectively, has been provided for net operating loss carryforwards and other deferred tax assets. We increased our valuation allowance by $7.4 million in 2013, of which $7.6 million represents current period net operating losses, partially offset by $0.2 million which represents changes in other comprehensive income (loss). We reduced our valuation allowance by $0.1 million in 2012. Excluding the change in our valuation allowance, our effective tax rate would have been a 259.4% benefit and a 15.1% expense for the three months ended March 31, 2013 and 2012, respectively.
Our pre-tax income is generated in a number of jurisdictions and is subject to a number of different effective tax rates that are significantly lower than the U.S. corporate statutory tax rate of 35.0%. For the three months
37
ended March 31, 2013, we earned $18.5 million of pre-tax income in jurisdictions with an expected full year effective tax rate of 6.0%. For the three months ended March 31, 2012, we earned $25.2 million of pre-tax income in jurisdictions with an expected full year effective tax rate of 13.4%.
Net income (loss) attributable to Kraton
Net loss attributable to Kraton was $3.7 million or $0.12 per diluted share for the three months ended March 31, 2013, a decrease of $20.1 million compared to net income of $16.4 million or $0.50 per diluted share for the three months ended March 31, 2012. Net loss for the three months ended March 31, 2013 included charges of approximately $5.9 million, net of tax, related to the write-off of debt issuance costs, the settlement of the interest rate swap and restructuring and related costs. These items, net of tax, increased our diluted loss per share by $0.19 for the three months ended March 31, 2013. Net income for the three months ended March 31, 2012 included a benefit of approximately $0.5 million, net of tax, associated with the LBI settlement, partially offset by a property tax dispute in France, restructuring and related charges and costs associated with our March 2012 offering. These items, net of tax, increased our diluted earnings per share by $0.01 for the three months ended March 31, 2012. The impact of the change in our deferred tax asset valuation allowance increased our diluted loss per share by $0.24 due to our inability to recognize a tax benefit on net operating losses generated during the three months ended March 31, 2013 and had no effect on diluted earnings per share for the three months ended March 31, 2012.
Critical Accounting Policies
For a discussion of our critical accounting policies and estimates that require the use of significant estimates and judgments, see Managements Discussion and Analysis of Financial Condition and Results of OperationsCritical Accounting Policies in our Annual Report on Form 10-K for the year ended December 31, 2012.
EBITDA, Adjusted EBITDA, Adjusted EBITDA at ECRC and Gross Profit at ECRC
We consider EBITDA, Adjusted EBITDA, Adjusted EBITDA at ECRC and Gross Profit at ECRC to be important supplemental measures of our performance and believe they are frequently used by investors, securities analysts and other interested parties in the evaluation of our performance including period-to-period comparisons. In addition, management uses these measures to evaluate operating performance, and our executive compensation plan bases incentive compensation payments on our Adjusted EBITDA and Adjusted EBITDA at ECRC performance, along with other factors. EBITDA, Adjusted EBITDA, Adjusted EBITDA at ECRC and Gross Profit at ECRC have limitations as analytical tools and in some cases can vary substantially from other measures of our performance. You should not consider any of them in isolation, or as substitutes for analysis of our results under U.S. generally accepted accounting principles (GAAP).
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
EBITDA (1) |
$ | 26,018 | $ | 41,633 | ||||
Adjusted EBITDA (2) |
$ | 28,677 | $ | 42,961 | ||||
Adjusted EBITDA at ECRC (3) |
$ | 29,184 | $ | 39,589 | ||||
Gross Profit at ECRC (4) |
$ | 60,418 | $ | 72,147 |
(1) | EBITDA represents net income before interest, taxes, depreciation and amortization. |
Limitations for EBITDA as an analytical tool include the following:
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EBITDA does not reflect our cash expenditures, or future requirements for capital expenditures or contractual commitments; |
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EBITDA does not reflect changes in, or cash requirements for, our working capital needs; |
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EBITDA does not reflect the significant interest expense, or the cash requirements necessary to service interest payments, on our debt; |
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although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future and EBITDA does not reflect any cash requirements for such replacements; |
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EBITDA calculation under the terms of our debt agreements may vary from EBITDA presented herein, and our presentation of EBITDA herein is not for purposes of assessing compliance or non-compliance with financial covenants under our debt agreements; |
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other companies in our industry may calculate EBITDA differently than we do, limiting its usefulness as a comparative measure; and |
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EBITDA is not a measure of discretionary cash available to us to invest in the growth of our business. |
(2) | We prepare Adjusted EBITDA by adjusting EBITDA to eliminate the impact of a number of items we do not consider indicative of our ongoing operating performance. We explain how each adjustment is derived and why we believe it is helpful and appropriate in the reconciliation below. You are encouraged to evaluate each adjustment and the reasons we consider it appropriate for supplemental analysis. As an analytical tool, Adjusted EBITDA is subject to the limitations applicable to EBITDA described above. In addition, in evaluating Adjusted EBITDA, you should be aware that in the future we may incur expenses similar to the adjustments in this presentation. Our presentation of Adjusted EBITDA should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. |
(3) | Adjusted EBITDA at estimated current replacement cost (ECRC) is Adjusted EBITDA net of the impact of the spread between the FIFO basis of accounting and ECRC. Although we report our financial results using the FIFO basis of accounting, as part of our pricing strategy, we measure our business performance using the estimated current replacement cost of our inventory and cost of goods sold. In addition, volatility in the cost of raw materials affects our results of operations and the period-over-period comparability of our results of operations. Therefore, we provide the spread between FIFO and ECRC, and we present Adjusted EBITDA at ECRC as another supplemental measure of our performance. As an analytical tool, Adjusted EBITDA at ECRC is subject to the limitations applicable to EBITDA described above, as well as the following limitations: |
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due to volatility in raw material prices, Adjusted EBITDA at ECRC may, and often does, vary substantially from EBITDA, net income and other performance measures, including net income calculated in accordance with US GAAP; and |
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Adjusted EBITDA at ECRC may, and often will, vary significantly from EBITDA calculations under the terms of our debt agreements and should not be used for assessing compliance or non-compliance with financial covenants under our debt agreements. |
Our presentation of Adjusted EBITDA at ECRC should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items.
(4) | Gross Profit at ECRC is gross profit net of the impact of the spread between the FIFO basis of accounting and ECRC. Although we report our financial results using the FIFO basis of accounting, as part of our pricing strategy, we measure our business performance using the estimated current replacement cost of our inventory and cost of goods sold. In addition, volatility in the cost of raw materials affects our results of operations and the period-over-period comparability of our results of operations. Therefore, we provide Gross Profit at ECRC as another supplemental measure of our performance. As a measure of our performance, Gross Profit at ECRC is limited because it often varies substantially from gross profit calculated in accordance with US GAAP due to volatility in raw material prices. |
We compensate for these limitations by relying primarily on our GAAP results and using EBITDA, Adjusted EBITDA, Adjusted EBITDA at ECRC and Gross Profit at ECRC only as supplemental measures.
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We reconcile consolidated net income (loss) to EBITDA, Adjusted EBITDA and Adjusted EBITDA at ECRC as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
Net income (loss) attributable to Kraton |
$ | (3,748 | ) | $ | 16,353 | |||
Net loss attributable to noncontrolling interest |
(76 | ) | 0 | |||||
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|
|
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Consolidated net income (loss) |
(3,824 | ) | 16,353 | |||||
Add: |
||||||||
Interest expense, net |
13,298 | 6,699 | ||||||
Income tax expense |
1,446 | 2,732 | ||||||
Depreciation and amortization expenses |
15,098 | 15,849 | ||||||
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EBITDA |
$ | 26,018 | $ | 41,633 | ||||
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|
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Add (deduct): |
||||||||
Settlement gain (a) |
0 | (6,819 | ) | |||||
Property tax dispute (b) |
0 | 6,211 | ||||||
Restructuring and related charges (c) |
136 | 56 | ||||||
Non-cash compensation expense |
2,523 | 1,880 | ||||||
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|
|
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Adjusted EBITDA |
28,677 | 42,961 | ||||||
Add (deduct): |
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Spread between FIFO and ECRC |
507 | (3,372 | ) | |||||
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Adjusted EBITDA at ECRC |
$ | 29,184 | $ | 39,589 | ||||
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(a) | Reflects the benefit of the LBI settlement, which is recorded in cost of goods sold. |
(b) | Reflects the charge associated with the resolution of the property tax dispute in France, of which $5,646 is recorded in cost of goods sold and $565 is recorded in selling, general and administrative expenses. |
(c) | Includes charges related to severance expenses, fees associated with the public offering of our senior notes and evaluation of acquisition transactions. |
We reconcile Gross Profit to Gross Profit at ECRC as follows:
Three months ended
March 31, |
||||||||
2013 | 2012 | |||||||
(In thousands) | ||||||||
Gross profit |
$ | 59,911 | $ | 75,519 | ||||
Add (deduct): |
||||||||
Spread between FIFO and ECRC |
507 | (3,372 | ) | |||||
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|
|
|
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Gross profit at ECRC |
$ | 60,418 | $ | 72,147 | ||||
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LIQUIDITY AND CAPITAL RESOURCES
Known Trends and Uncertainties
Kraton Performance Polymers, Inc. is a holding company without any operations or assets other than the operations of its subsidiaries.
In March 2013, we entered into an asset-based revolving credit facility consisting of a U.S. senior secured revolving credit facility of $150.0 million and a Dutch senior secured revolving credit facility of $100.0 million (the Senior Secured Credit Facilities), to replace the then existing senior secured credit facility, and repaid in full all outstanding amounts payable under the previously existing indebtedness. Availability under the Senior Secured Credit Facilities will be subject to a borrowing base and the facilities are secured by receivables and inventory. The Senior Secured Credit Facilities include a $100.0 million uncommitted accordion feature that, subject to borrowing base availability and approval of the bank syndicate, could increase aggregate availability to $350.0 million. We cannot guarantee that all of the counterparties contractually committed to fund a revolving credit draw request will actually fund future requests, although we currently believe that each of the counterparties would meet their funding requirements.
The Senior Secured Credit Facilities contain a financial covenant and certain customary events of default, including, without limitation, a failure to make payments under the facility, cross-default and cross-judgment default, certain bankruptcy events and certain change of control events. Our failure to comply with the covenants would give rise to a default under the Senior Secured Credit Facilities. If factors arise that negatively impact our profitability, we may not be able to satisfy the covenants. If we are unable to satisfy such covenants or other provisions at any future time we would need to seek an amendment or waiver of such covenants or other provisions. The respective lenders under the Senior Secured Credit Facilities may elect not to consent to any amendment or waiver requests that we may make in the future, and, if they do consent, they may do so on terms that are not favorable to us. In the event that we were unable to obtain any such waiver or amendment and we were not able to refinance or repay our Senior Secured Credit Facilities, our inability to meet the covenants or other provisions of the Senior Secured Credit Facilities would constitute an event of default, which would permit the bank lenders to accelerate the Senior Secured Credit Facilities. Such acceleration may in turn constitute an event of default under our senior notes. At March 31, 2013, we were in compliance with the covenants under the Senior Secured Credit Facilities and the indenture governing our 6.75% senior notes.
The Senior Secured Credit Facilities terminate on March 27, 2018, however we may, from time to time, request that the lenders extend the maturity of their commitments; provided that at no time shall there be more than four maturity dates under the Senior Secured Credit Facilities.
Based upon current and anticipated levels of operations, we believe that cash flows from operations of our subsidiaries, cash on hand, and borrowings available to us will be sufficient to fund our working capital requirements, our investment in the joint venture with FPCC, debt payments, interest payments, capital expenditures, benefit plan contributions and income tax obligations. However, these cash flows are subject to a number of factors, including, but not limited to, earnings, sensitivities to the cost of raw materials, seasonality and fluctuations in foreign currency exchange rates. Because feedstock costs generally represent a substantial portion of our cost of goods sold, in periods of rising feedstock costs, we generally consume cash in operating activities due to increases in accounts receivable and inventory costs, partially offset by increased value of accounts payable. Conversely, during periods in which feedstock costs are declining, we generate cash flow from decreases in working capital.
Going forward there can be no assurance that our business will generate sufficient cash flow from operations or that future borrowings will be available under our senior secured credit facilities to fund liquidity needs and enable us to service our indebtedness. At March 31, 2013, we had $136.1 million of cash and cash equivalents, which includes $31.0 million of cash-on-hand at KFPC, the consolidated joint venture in Asia. As of March 31, 2013, our available borrowing capacity was $118.8 million of which $40.0 million was drawn. This
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includes a Dutch borrowing capacity of $0.0 million as it was pending satisfaction of post-closing conditions related to the lenders security interest in the Dutch assets. Excluding the $31.0 million of KFPC cash, our liquidity at March 31, 2013 amounted to $183.9 million. As of the date of this filing, our available borrowing capacity was $206.6 million, of which $40.0 million was drawn, which includes $83.7 million of Dutch borrowing capacity that became available when we resolved the post-closing conditions related to the lenders security interest in the Dutch assets. Our available cash and cash equivalents are held in accounts managed by third-party financial institutions and consist of cash invested in interest bearing funds and operating accounts. To date, we have not experienced any losses or lack of access to our invested cash or cash equivalents; however, we cannot provide any assurance that adverse conditions in the financial markets will not impact access to our invested cash and cash equivalents.
For additional information regarding our Senior Secured Credit Facilities, see Senior Secured Credit Facilities in Note 6 Long-Term Debt to the condensed consolidated financial statements, which is incorporated herein by reference.
We made contributions of $1.2 million to our pension plan in the three months ended March 31, 2013 and $1.3 million for the three months ended March 31, 2012. We expect our total pension plan contributions for the year ended December 31, 2013 to be $6.2 million. Our pension plan obligations are predicated on a number of factors, the primary ones being the return on our pension plan assets and the discount rate used in deriving our pension obligations. If the investment return on our pension plan assets does not meet or exceed expectations during 2013, and the discount rate decreases from the prior year, higher levels of contributions could be required in 2014 and beyond.
As of March 31, 2013, we had $89.0 million of cash and short-term investments related to foreign operations that management asserts are permanently reinvested. As a result of net operating loss carryforwards, management estimates that no additional cash tax expense would be incurred if this cash were repatriated.
Turbulence in U.S. and international markets and economies may adversely affect our liquidity and financial condition, the liquidity and financial condition of our customers, and our ability to timely replace maturing liabilities and access the capital markets to meet liquidity needs, resulting in adverse effects on our financial condition and results of operations. However, to date we have been able to access borrowings available to us in amounts sufficient to fund liquidity needs. Total receivables, net of allowances, for customers located in Italy, Spain, Portugal, Greece and Ireland aggregated approximately $8.7 million at March 31, 2013. We have not incurred to date, nor do we currently expect to incur any material losses associated with these trade receivables.
Our ability to pay principal and interest on our indebtedness, fund working capital, make anticipated capital expenditures and fund our investment in the joint venture with FPCC depends on our future performance, which is subject to general economic conditions and other factors, some of which are beyond our control. See Part I, Item 1A. Risk Factors in our annual report on Form 10-K for the year ended December 31, 2012 for further discussion.
Operating Cash Flows and Liquidity
Net cash used in operating activities totaled $20.8 million for the three months ended March 31, 2013 and net cash provided by operating activities were $56.1 million for the three months ended March 31, 2012. This represents a net decrease of $76.9 million, which was driven by a decrease in net income and primarily by changes in working capital, as follows:
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$56.1 million increase in inventories of products, materials and supplies, largely due to lower sales volume; |
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$13.4 million decrease in other payables and accruals, primarily related to property taxes, interest and income taxes; |
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$6.1 million decrease in related party payables associated with purchases and timing of payments to our joint venture in Japan; partially offset by |
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$10.3 million decrease in accounts receivable primarily related to lower sales revenue. |
Investing Cash Flows
Net cash used in investing activities totaled $17.4 million for the three months ended March 31, 2013 and $10.4 million for the three months ended March 31, 2012.
Expected Capital Expenditures. We currently expect 2013 capital expenditures, excluding funding for the joint venture with FPCC, will be approximately $80.0 million to $85.0 million. Included in this estimate is approximately $14.5 million related to the semi-works facility, approximately $14.0 million to comply with the MACT rule, of which $2.8 million will be financed with a capital lease, and approximately $19.0 million to $22.0 million for health, safety and environmental and infrastructure and maintenance projects. The remaining anticipated 2013 capital expenditures are primarily associated with projects to optimize the production capabilities of our manufacturing assets and to support our innovation platform. In addition, at this time, after completing our initial engineering estimate, we anticipate the total FPCC joint venture project construction cost will be at least $200.0 million. We and FPCC intend to pursue opportunities to obtain debt financing for project costs at the joint venture level. Based on our current assumptions with respect to final project cost, timing and the extent to which the project can be funded through third-party debt financing, we estimate our share of the funding for the joint venture will be approximately $50.0 million of which $15.2 million has been funded during the three months ended March 31, 2013, and approximately $24.8 million is estimated to be funded in the remainder of 2013. We currently anticipate funding our remaining 2013 contributions with available liquidity.
Financing Cash Flows
Our consolidated capital structure as of March 31, 2013 was approximately 54% equity, 44% debt and 2% noncontrolling interest compared to approximately 53% equity and 47% debt as of March 31, 2012.
Net cash used in financing activities totaled $45.5 million for the three months ended March 31, 2013 and net cash provided by financing activities were $96.9 million for the three months ended March 31, 2012. The $142.4 million decrease was driven primarily by:
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a $96.9 million repayment of term loans associated with the March 2013 refinancing of our debt structure; |
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net proceeds from the 2013 refinancing being $61.3 million less than proceeds from the 2012 issuance of additional 6.75% Senior Notes; partially offset by |
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a $15.2 million increase in contribution from noncontrolling interest. |
Description of 6.75% Senior Notes due 2019
Kraton Polymers LLC and its wholly-owned financing subsidiary Kraton Polymers Capital Corporation issued $350.0 million aggregate principal amount of 6.75% senior notes that mature on March 1, 2019. The notes are general unsecured, senior obligations and will be unconditionally guaranteed on a senior unsecured basis. We pay interest on the notes at 6.75% per annum, semi-annually in arrears on March 1 and September 1 of each year. Prior to March 1, 2015, we may redeem all or a part of the senior notes, at a redemption price equal to 100.00% of the principal amount of the senior notes redeemed plus the applicable premium as of, plus accrued and unpaid interest, if any, to the applicable redemption date. After March 1, 2015, we may redeem all or a part of the senior notes for 103.375%, 101.688%, and 100.000% of the principal amount in 2015, 2016 and 2017 and thereafter, respectively. See Note 6 Long-Term Debt , for further discussion.
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Contractual Commitments
Our contractual obligations are summarized in Part II, Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations, in our annual report on Form 10-K for the period ended December 31, 2012. Other than the refinancing of our indebtedness in March 2013 and our minimum purchase obligations required under our KFPC joint venture agreements, there have been no other material changes to the contractual obligation amounts disclosed in our annual report on Form 10-K for the year ended December 31, 2012. The following table provides our updated long-term debt and purchase obligations as of March 31, 2013.
Payments Due by Period | ||||||||||||||||||||||||||||
Dollars in Millions |
Total | 2013 | 2014 | 2015 | 2016 | 2017 |
2018 and
after |
|||||||||||||||||||||
Long-term debt obligations |
$ | 390.0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 390.0 | ||||||||||||||
Purchase obligations (1) |
4,713.8 | 341.2 | 322.3 | 151.3 | 166.9 | 175.0 | 3,557.1 |
(1) | Pursuant to the styrene and butadiene feedstock supply contracts with Shell Chemicals and its affiliates, we are obligated to purchase minimum quantities. The contracts do not contain a stated penalty for failure to purchase the minimum quantities. However, if we do not purchase the minimum requirements, it is required under the terms of the contracts that we meet with Shell Chemicals in an effort to determine a resolution equitable to both parties. Included in the above table is our estimated minimum purchases required under our KFPC joint venture agreements. Due to the indefinite term of this joint venture, we have based our minimum purchases on an assumed 20 year useful life of the facility. |
Off-Balance Sheet Arrangements
We are not involved in any material off-balance sheet arrangements as of March 31, 2013, other than operating leases.
Item 3. | Quantitative and Qualitative Disclosures about Market Risk. |
For quantitative and qualitative disclosures about market risk, see Part II, Item 7A, Quantitative and Qualitative Disclosures About Market Risk, in our annual report on Form 10-K for the year ended December 31, 2012. There have been no material changes to the quantitative and qualitative disclosures about market risk disclosed in our annual report on Form 10-K for the year ended December 31, 2012. See Note 8 Fair Value Measurements, Financial Instruments and Credit Risk for further discussion.
Item 4. | Controls and Procedures. |
An evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15 under the Securities Exchange Act of 1934) was carried out under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer. As of March 31, 2013, based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the design and operation of these disclosure controls and procedures were effective.
There has been no change in our internal control over financial reporting that occurred during the three months ended March 31, 2013 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
44
PART II. OTHER INFORMATION
Item 1. | Legal Proceedings. |
For information regarding legal proceedings, see Note 10 Commitments and Contingencies , to our condensed consolidated financial statements.
Item 1A. | Risk Factors. |
Readers of this Quarterly Report on Form 10-Q should carefully consider the risks described in our other reports filed with or furnished to the SEC, including our prior and subsequent reports on Forms 10-K, 10-Q and 8-K, in connection with any evaluation of our financial position, results of operations and cash flows.
The risks and uncertainties in our most recent Annual Report on Form 10-K, are not the only ones facing us. Additional risks and uncertainties not presently known or those that are currently deemed immaterial may also affect our operations. Any of the risks, uncertainties, events or circumstances described therein could cause our future financial condition, results of operations or cash flows to be adversely affected.
45
Item 6. | Exhibits. |
Exhibit
|
||
10.1 | Loan Agreement dated as of March 27, 2013 among Kraton Performance Polymers, Inc., as a Guarantor, Kraton Polymers U.S. LLC, as a U.S. Borrower, Kraton Polymers Nederland B.V., as a Dutch Borrower, the other Guarantors named therein, the Lenders named therein, and Bank of America, N.A., as Administrative Agent and Collateral Agent (incorporated by reference to Exhibit 10.1 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on April 1, 2013) | |
10.2 | Pledge Agreement dated as of March 27, 2013 among Kraton Polymers U.S. LLC, as a U.S. Borrower, Kraton Polymers LLC and Kraton Performance Polymers, Inc., as Pledgors, the other Pledgors named therein, and Bank of America, N.A., as Collateral Agent for the holders of the Secured Obligations (incorporated by reference to Exhibit 10.2 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on April 1, 2013) | |
10.3* | Shareholder Agreement of Kraton Formosa Polymers Corporation by and between KP Investment BV and Formosa Petrochemical Corporation dated February 27, 2013 | |
10.4* | Ground Lease by and between Formosa Petrochemical Corporation and Kraton Formosa Polymers Corporation dated February 27, 2013 | |
31.1* | Certification of Chief Executive Officer under Section 302 of SarbanesOxley Act of 2002 | |
31.2* | Certification of Chief Financial Officer under Section 302 of SarbanesOxley Act of 2002 | |
32.1* | Certification Pursuant to Section 906 of SarbanesOxley Act of 2002 | |
101** | The following materials from Kraton Performance Polymers, Inc.s Quarterly Report on Form 10-Q for the quarter ended March 31, 2013, formatted in XBRL (eXtensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets as of March 31, 2013 and December 31, 2012 (Unaudited), (ii) Condensed Consolidated Statements of Operations for the three months ended March 31, 2013 and 2012 (Unaudited), (iii) Condensed Consolidated Statements of Comprehensive Income (Loss) for the three months ended March 31, 2013 and 2012 (Unaudited), (iv) Condensed Consolidated Statements of Changes in Equity for the three months ended March 31, 2013 and 2012 (Unaudited), (v) Condensed Consolidated Statements of Cash Flows for the three months ended March 31, 2013 and 2012 (Unaudited) and (vi) Notes to Condensed Consolidated Financial Statements (Unaudited).** |
* | Filed herewith. |
** | Pursuant to Rule 406T of Regulation S-T, the Interactive Data Files in Exhibit 101 hereto are not deemed filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are not deemed filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections. |
46
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
KRATON PERFORMANCE POLYMERS, INC. | ||
Date: May 2, 2013 |
/ S / K EVIN M. F OGARTY |
|
Kevin M. Fogarty President and Chief Executive Officer |
||
Date: May 2, 2013 |
/ S / S TEPHEN E. T REMBLAY |
|
Stephen E. Tremblay Vice President and Chief Financial Officer |
47
Exhibit 10.3
Execution Version
SHAREHOLDER AGREEMENT
of
also known as
KRATON FORMOSA POLYMERS CORPORATION
by and between
KP INVESTMENT BV , as Shareholder
and
FORMOSA PETROCHEMICAL CORPORATION , as Shareholder
Dated February 27, 2013
TABLE OF CONTENTS
Page | ||||
ARTICLE I ORGANIZATION MATTERS |
1 | |||
Section 1.1 Pre-Establishment Matters |
1 | |||
Section 1.2 Formation of Project Company |
2 | |||
Section 1.3 Registered Office |
2 | |||
Section 1.4 Purpose and Business |
2 | |||
Section 1.5 Language |
3 | |||
Section 1.6 Term |
3 | |||
ARTICLE II CAPITAL CONTRIBUTIONS |
3 | |||
Section 2.1 Capitalization of Project Company |
3 | |||
Section 2.2 Registered Capital |
3 | |||
Section 2.3 Foreign Investment Approvals |
4 | |||
Section 2.4 Failure to Pay for Registered Capital |
4 | |||
Section 2.5 Other Shareholder Loans |
5 | |||
Section 2.6 Third Party Financing |
5 | |||
Section 2.7 Uncertificated Interests |
5 | |||
Section 2.8 Formation Expenses |
5 | |||
ARTICLE III DISTRIBUTIONS |
6 | |||
Section 3.1 Distributions and Payments |
6 | |||
ARTICLE IV ACCOUNTING, FINANCIAL REPORTING AND TAX MATTERS |
6 | |||
Section 4.1 Fiscal Year |
6 | |||
Section 4.2 Auditor |
6 | |||
Section 4.3 Method of Accounting for Financial Reporting Purposes |
7 | |||
Section 4.4 Books and Records; Right of Shareholders to Audit |
8 | |||
Section 4.5 Reports and Financial Statements |
8 | |||
Section 4.6 Taxation |
9 | |||
ARTICLE V DIRECTORS; BOARD; SHAREHOLDERS MEETINGS |
9 | |||
Section 5.1 Directors |
9 | |||
Section 5.2 Board of Directors Representatives |
9 | |||
Section 5.3 Chairman of the Board |
9 | |||
Section 5.4 Appointment; Removal |
10 | |||
Section 5.5 No Compensation |
10 | |||
Section 5.6 Matters Required To Be Approved by the Board |
10 | |||
Section 5.7 Limitation of Duties and Liabilities |
13 | |||
Section 5.8 Proxies and Voting Agreements |
14 | |||
ARTICLE VI MEETINGS OF THE BOARD |
14 | |||
Section 6.1 Board Meetings |
14 | |||
Section 6.2 Quorum |
15 | |||
Section 6.3 Adjournments |
15 |
i
Section 6.4 Voting |
15 | |||
Section 6.5 Appointment of Directors Representative Alternate |
15 | |||
Section 6.6 Lack of Authority of Persons Other than the Board and Managers |
16 | |||
Section 6.7 Control of Related Party Transactions |
16 | |||
ARTICLE VII MANAGERS AND EMPLOYEES |
17 | |||
Section 7.1 Delegation |
17 | |||
Section 7.2 Managers |
17 | |||
Section 7.3 Term of Managers |
18 | |||
Section 7.4 Removal of Managers and Employees |
18 | |||
Section 7.5 Duties |
18 | |||
Section 7.6 President |
19 | |||
Section 7.7 Finance and Administration Manager |
19 | |||
Section 7.8 Vice Presidents |
20 | |||
Section 7.9 Assistant Managers |
20 | |||
Section 7.10 Other Managers |
20 | |||
Section 7.11 Salaries |
20 | |||
Section 7.12 Delegation |
20 | |||
Section 7.13 Seconded Employees |
21 | |||
Section 7.14 General Authority |
21 | |||
ARTICLE VIII BUSINESS PLANS, ANNUAL BUDGETS AND LOANS |
21 | |||
Section 8.1 Business Plan |
21 | |||
Section 8.2 Annual Budget |
22 | |||
Section 8.3 Additional Reports |
23 | |||
Section 8.4 Implementation of Business Plan and Discretionary Expenditures by President |
23 | |||
Section 8.5 Transaction Documents |
23 | |||
ARTICLE IX ADDITIONAL SHAREHOLDER COVENANTS |
24 | |||
Section 9.1 Non-Compete |
24 | |||
Section 9.2 Phase II Plant Expansion |
24 | |||
Section 9.3 USBC Business |
24 | |||
Section 9.4 Plant Shut-Down |
25 | |||
ARTICLE X TRANSFERS AND PLEDGES |
25 | |||
Section 10.1 Restrictions on Transfer and Prohibition on Pledge |
25 | |||
Section 10.2 Transfer of Transaction Documents and Shareholder Loans |
26 | |||
Section 10.3 Minimum Requirements of a Transferee |
26 | |||
Section 10.4 Remedies for Breaches of this Article X |
27 | |||
Section 10.5 Withdrawal by a Shareholder |
28 | |||
ARTICLE XI DEADLOCK, DEFAULT AND REMEDY |
28 | |||
Section 11.1 Failure to Approve Business Plan or Annual Budget |
28 | |||
Section 11.2 Environmental and Safety |
29 | |||
Section 11.3 Board Deadlock |
29 | |||
Section 11.4 Mediation |
30 |
ii
Section 11.5 Events of Default |
30 | |||
Section 11.6 Consequences of an Event of Default |
31 | |||
Section 11.7 Material Economic Change |
31 | |||
ARTICLE XII DISSOLUTION, TERMINATION AND LIQUIDATION |
32 | |||
Section 12.1 Dissolution Events |
32 | |||
Section 12.2 Dissolution Procedures |
33 | |||
Section 12.3 Termination |
34 | |||
Section 12.4 Notice of Retention |
34 | |||
ARTICLE XIII INDEMNIFICATION |
34 | |||
Section 13.1 Indemnification |
34 | |||
Section 13.2 Indemnification Procedures |
34 | |||
ARTICLE XIV GENERAL PROVISIONS |
34 | |||
Section 14.1 Miscellaneous Provisions |
34 | |||
Section 14.2 Governing Law |
34 | |||
Section 14.3 Dispute Resolution |
35 | |||
Section 14.4 Ethical Business Practices |
35 | |||
Section 14.5 Conflicting Provisions |
35 | |||
Section 14.6 Language |
35 |
APPENDICES | ||
Appendix A | Definitions | |
Appendix B | General Provisions | |
Appendix C | Dispute Resolution Procedures | |
Appendix D | Ethical Business Practices | |
SCHEDULES | ||
Schedule 1 | Notice Addresses | |
Schedule 2 | Board Composition | |
Schedule 3 | Managers | |
Schedule 4 | Insurance | |
EXHIBITS | ||
Exhibit A | Financial Statements and Reports | |
Exhibit B | Initial Five-Year Business Plan | |
Exhibit C | Initial Annual Budget | |
Exhibit D | Form of Monthly Business Report | |
Exhibit E-1 | Code of Ethics and Business Conduct Policy | |
Exhibit E-2 | HSE Policy | |
Exhibit F | U.S. Tax Matters | |
Exhibit G | Capitalization Plan |
iii
SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT (this
Agreement
) of the shareholders of
, also known as Kraton Formosa Polymers Corporation, a limited liability company incorporated in the Republic of China (
Project Company
) is dated February 27, 2013 (the
Execution Date
), and is entered into by and between KP Investment BV, a company organized under the laws of the Netherlands (
Kraton Shareholder
), and Formosa Petrochemical Corporation, a company
limited by shares and incorporated in the Republic of China (
FPCC Shareholder
; and together with Kraton Shareholder, the
Shareholders
).
Capitalized terms used in this Agreement shall have the meanings ascribed thereto in Appendix A .
RECITALS
A. On July 13, 2011, Kraton Performance Polymers, Inc., a Delaware corporation ( Kraton ), and FPCC Shareholder, entered into the Framework Agreement whereby Kraton and FPCC Shareholder agreed to form and jointly own Project Company.
B. Kraton Shareholder is a wholly owned indirect subsidiary of Kraton.
C. Project Company will design, develop, construct and operate a facility in the Republic of China (Taiwan) for the production of hydrogenated styrenic block copolymers and related products utilizing proprietary technology owned by an Affiliate of Kraton.
D. To implement the transactions contemplated by the Framework Agreement, the above named parties are entering into this Agreement and each of the other Transaction Documents, either directly or through one or more of their respective Affiliates.
E. The parties will exercise their rights in relation to Project Company pursuant to the terms and conditions of this Agreement and the Articles of Incorporation of Project Company.
NOW, THEREFORE , in consideration of the premises, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:
ARTICLE I
ORGANIZATION MATTERS
Section 1.1 Pre-Establishment Matters.
(a) The Shareholders will form a Preparatory Office for Project Company (the Preparatory Office ) by opening a bank account in the name of the Preparatory Office ( Preparatory Office Bank Account ) with a bank mutually agreed by the parties. Kraton Shareholder and FPCC Shareholder shall be entitled to each appoint one account signatory. Operation of the Preparatory Office Bank Account will require (i) application of the seal of the Preparatory Office, and (ii) the signatures of both account signatories.
1
(b) At 10:00 am, Taipei time, on a date to be specified by the Shareholders at the office of Lee, Tsai & Partners or at such other time or place as is agreed in writing by the Shareholders, (i) each Shareholder shall remit an amount equal to its respective share of the initial Registered Capital as set out in Section 2.2 into the Preparatory Office Bank Account, (ii) the Preparatory Office shall execute each Transaction Document to which Project Company is a party, (iii) each Shareholder shall execute each Transaction Document to which it is a party, and (iv) each Affiliate of a Shareholder shall execute each such Transaction Document to which it is a party.
(c) The parties understand that the Preparatory Office is the pre-formation step of Project Company and all the agreements executed by the Preparatory Office under this Section 1.1 will bind Project Company upon its due incorporation. The date of Project Companys due incorporation is referred to herein as the Formation Date . The Shareholders will take any and all necessary actions to cause the Board of Project Company to pass a board resolution or to obtain the written consent from the Directors Representatives to ratify the agreements executed under this Section 1.1 , including each Transaction Document to which Project Company is a party.
(d) The Shareholders will cooperate and provide necessary assistance in progressing the incorporation of Project Company and completing the incorporation process as quickly as possible but in any event no later than 30 days after execution hereof or such other later date agreed to by the Shareholders.
Section 1.2
Formation of Project Company
. On the Execution Date, the Shareholders formed Project Company, a
limited liability company incorporated in the Republic of China, by filing the Articles of Incorporation of Project Company with the appropriate Governmental Authorities. The Chinese name of Project Company shall be
, and the English language name of Project Company shall be Kraton Formosa Polymers Corporation.
Section 1.3 Registered Office . The registered office of Project Company shall be 11F.-1, No. 32, Song Ren Rd., Xinyi Dist., Taipei City 110, Taiwan (R.O.C.), or such other place as the Board may from time to time determine.
Section 1.4 Purpose and Business . The purpose and business of Project Company shall be to, directly or indirectly, (i) design, construct, own and operate an HSBC facility in Taiwan utilizing proprietary technology owned by an Affiliate of Kraton Shareholder, (ii) sell HSBC produced at the Plant to, and meeting the specifications provided by, Kraton Shareholder or its Affiliate pursuant to the Offtake Agreement, (iii) acquire and dispose of properties and assets used or useful in connection with the foregoing, and (iv) do all things necessary, appropriate, convenient or incidental in connection with the ownership, operation or financing of such business and activities, or otherwise in connection with the foregoing, as are permitted under Applicable Law (collectively, the Business ).
2
Section 1.5 Language . All Business to be conducted by Project Company shall be conducted in English unless otherwise agreed by the parties in writing, except that the operating manual and related operations documentation for the Plant shall be prepared in both Chinese and English.
Section 1.6 Term . The term for which Project Company is to exist is from the date Project Companys Organizational Documents were filed with the appropriate Governmental Authorities in the Republic of China until dissolution and liquidation of Project Company in accordance with the provisions of Article XII .
ARTICLE II
CAPITAL CONTRIBUTIONS
Section 2.1 Capitalization of Project Company . The initial capitalization plan of the parties is attached as Exhibit G and provides that the capital requirements of Project Company between the Execution Date and acceptance of the Plant from the Construction Contractor shall be funded from a combination of the following:
(i) | Registered Capital, |
(ii) | Third Party debt financing (the Third Party Loans ), and |
(iii) | Shareholder loans. |
The amount of Registered Capital shall represent approximately 30% of the estimated operating and capital needs of Project Company during this period, except as otherwise decided by the Shareholders.
Section 2.2 Registered Capital .
(a) The initial Registered Capital shall be NT$900,000,000 (approximately US$30 million) unless otherwise agreed by the Shareholders.
(b) The Shareholders shall work together in good faith to approve increases in Registered Capital from time to time as needed in order to fund the operating and capital needs of Project Company.
3
(c) Each Shareholder will fund 50% of the Registered Capital as promptly as practicable following Kraton Shareholders receipt of the applicable FIA approval, and upon funding will own beneficially and of record 50% of the Registered Capital.
(d) All references to Registered Capital in this Agreement includes Shareholder Registered Capital Loans made pursuant to Section 2.5 .
Section 2.3 Foreign Investment Approvals . Kraton Shareholder shall apply for foreign investment approval with the Statute for Investment by Foreign Nationals of the Republic of Taiwan ( FIA ) for (i) its contribution of the initial Registered Capital, (ii) each additional Registered Capital contribution and (iii) if required by Applicable Law, each Shareholder loan made by Kraton Shareholder.
Section 2.4 Failure to Pay for Registered Capital .
(a) In the event that a Shareholder (the Non-Funding Shareholder ) fails to pay its 50% portion of Registered Capital as and when required, then the other Shareholder (the Funding Shareholder ):
(i) shall have the right (but not the obligation) to cause Project Company to obtain a Third Party Loan in an amount equal to (x) the funds that would have been paid by the Non-Funding Shareholder but for the default or (y) the total amount of such increase in Registered Capital, and
(ii) shall have the right (but not the obligation) to advance funds to Project Company as a Shareholder loan in an amount equal to the total amount of such increase in Registered Capital (each a Shareholder Funding Default Loan ).
If the Funding Shareholder elects, in its sole discretion, to advance funds to Project Company in the form of a Shareholder Funding Default Loan, then (i) repayment of such Shareholder Funding Default Loan shall be made on a priority basis before repayment of any other debt for borrowed money, (ii) the interest rate for such Shareholder Default Loan shall be LIBOR plus 300 basis points, and (iii) the Non-Funding Shareholder shall be solely responsible for payment of all interest on any such Shareholder Funding Default Loan, which shall be either (x) paid to the Funding Shareholder directly by the Non-Funding Shareholder, (y) paid in its entirety to the Funding Shareholder out of distributions or payments that would otherwise have been payable by Project Company to the Non-Funding Shareholder, or (z) if Project Company pays or distributes amounts in repayment of any such interest to the Funding Shareholder, reimbursed 50% to Project Company and 50% to the Funding Shareholder.
4
Section 2.5 Other Shareholder Loans .
(a) If permitted by Applicable Law, the Shareholders will fund a portion of the Registered Capital through one or more Shareholder loans from each Shareholder to Project Company (each such loan, a Shareholder Registered Capital Loan ) upon agreement of the Shareholders not to be unreasonably withheld, conditioned or delayed in light of tax laws rules and regulations applicable to Kraton Shareholder and its Affiliates and FPCC Shareholder. Shareholder Registered Capital Loans shall (i) be made in an equal amount by Kraton Shareholder and FPCC Shareholder on a pari passu basis, and (ii) have such terms as may be specified by Kraton Shareholder in light of applicable tax laws, rules and regulations.
(b) The Shareholders may also agree to fund a portion of the capital needs of Project Company that are not covered by Registered Capital by making Shareholder loans to Project Company (each such loan, a Shareholder Financing Loan ) in lieu of Third Party Loans. Shareholder Financing Loans shall (i) be made in an equal amount by Kraton Shareholder and FPCC Shareholder on a pari passu basis, (ii) be for a five-year term and (iii) bear interest at a rate equal to LIBOR plus 300 basis points.
(c) Any Shareholder loan may be made by a Shareholder or on behalf of such Shareholder by an Affiliate or Third Party lender.
Section 2.6 Third Party Financing . Project Company shall seek Third Party Loans for all capital needs of Project Company that are not covered by Registered Capital or Shareholder Financing Loans in an amount agreed by the Shareholders. Any such financing shall be obtained on the best terms with the lowest interest rate possible and shall be coordinated by FPCC Shareholder. Each Shareholder will provide credit support for any such Third Party Loans if doing so would be in the best interest of Project Company, in proportion to its Registered Capital and on identical terms.
Section 2.7 Uncertificated Interests . Registered Capital shall not be represented by certificates. Ownership of Registered Capital shall be reflected in the share registry of Project Company and the Articles of Incorporation of Project Company.
Section 2.8 Formation Expenses . To the extent legally permissible, the Shareholders shall cause the Preparatory Office to incur any and all Formation Expenses directly. From time to time after the Execution Date, each Shareholder may submit an invoice to Project Company with respect to Formation Expenses that have not been incurred or assumed directly by the Preparatory Office and have been approved in advance by the Shareholders. Upon approval by each Shareholder of such Formation Expenses, Project Company shall pay the amount of each such invoice by wire transfer of immediately available funds to an account designated by the invoicing Shareholder. As used herein, Formation Expenses means any amounts (i) payable to a Third Party by a Shareholder or its Affiliate that are related to (x) the formation of Project Company pursuant to a Transaction Document and (y) amounts payable by Project Company to Kraton Shareholder pursuant to the Basic Design Engineering Package Agreement, and (ii) payable to a Third Party pursuant to the Engineering Letter Agreements or any other agreement for engineering services related to the Plant, in each case from and after the Effective Date.
5
ARTICLE III
DISTRIBUTIONS
Section 3.1 Distributions and Payments . Cash shall be available for distribution to the Shareholders only after the principal and accrued interest on any Shareholder Funding Default Loan has been paid in full. Cash available for distribution to the Shareholders shall be distributed or paid annually or more often as agreed by the Shareholders and permitted by Applicable Law, in each case as follows:
(a) First, to the Shareholders that have made Shareholder Financing Loans, to the extent of and in proportion to any accrued and unpaid interest on such Shareholder Financing Loans then due and payable;
(b) Second, to the Shareholders that have made Shareholder Financing Loans, to the extent of and in proportion to any outstanding principal balances on such Shareholder Financing Loans to the extent due and payable; and
(c) Thereafter, on a pari passu basis, to (i) payment of all or a portion of remaining accrued interest on any Shareholder Registered Capital Loan, (ii) repayment of all or a portion of remaining principal on any Shareholder Registered Capital Loan or (iii) distribution to the Shareholders, in each case in accordance with their respective Registered Capital, as agreed by the Shareholders in light of tax laws, rules and regulations applicable to Kraton Shareholder and its Affiliates and FPCC Shareholder, such agreement not to be unreasonably withheld, conditioned or delayed.
ARTICLE IV
ACCOUNTING, FINANCIAL REPORTING AND TAX MATTERS
Section 4.1 Fiscal Year . The Fiscal Year of Project Company shall be the calendar year January 1 through December 31.
Section 4.2 Auditor . The independent accounting firm of Project Company (the Independent Auditor ) shall be KPMG LLP.
6
Section 4.3 Method of Accounting for Financial Reporting Purposes .
(a) Year-End Financial Statements .
(i) For financial reporting purposes, Project Company will furnish to each Shareholder as soon as practicable after the end of each Fiscal Year of Project Company, and in any event within 50 days thereafter, a balance sheet of Project Company as of the end of such Fiscal Year, and related statements of income, equity and cash flow of Project Company for such Fiscal Year, and the notes thereto, in both English and Chinese, each as prepared in accordance with IFRS consistently applied during such Fiscal Year and Applicable Law, setting forth in each case in comparative form the figures for such Fiscal Year and the prior Fiscal Year, all in reasonable detail and certified by the Independent Auditor.
(ii) In addition, Project Company will furnish to each Shareholder, as soon as practicable after the end of each Fiscal Year of Project Company, and in any event within 50 days thereafter, a balance sheet of Project Company as of the end of such Fiscal Year, and related statements of income, equity and cash flow of Project Company for such Fiscal Year, and the notes thereto, in English as prepared in accordance with U.S. GAAP consistently applied during such Fiscal Year and Applicable Law (including Applicable Law of the U.S. governing Kraton-invested enterprises) and audited in accordance with U.S. GAAP by the Independent Auditor, and setting forth in each case in comparative form the figures for such Fiscal Year and the prior Fiscal Year, all in reasonable detail and certified by the Independent Auditor.
(b) Quarterly Financial Statements .
(i) Project Company will furnish to each Shareholder as soon as practicable after the end of each quarterly period which is not the Fiscal Year-end of Project Company, and in any event within 20 days thereafter, a balance sheet of Project Company as of the end of such quarterly period, and related statements of income, equity and cash flow of Project Company for such quarterly period, and the notes thereto, in both English and Chinese, each as prepared in accordance with IFRS consistently applied during such quarterly period and Applicable Law, and setting forth in each case in comparative form the figures for such quarterly period and the prior years corresponding quarterly period, all in reasonable detail.
(ii) In addition, Project Company will furnish to each Shareholder as soon as practicable after the end of each quarterly period which is not the Fiscal Year-end of Project Company, and in any event within 20 days thereafter, a balance sheet of Project Company as of the end of such quarterly period, and related statements of income, equity and cash flow of Project Company for such quarterly period, and the notes thereto, all in reasonable detail, in English, each as prepared in accordance with U.S. GAAP consistently applied during such quarterly period and Applicable Law (including Applicable Law of the U.S. governing Kraton-invested enterprises), and setting forth in each case in comparative form the figures for such quarterly period and the prior years corresponding quarterly period, all in reasonable detail.
(c) Monthly Financial Statements . Project Company will furnish to each Shareholder as soon as practicable after the end of each month, and in any event within five Business Days thereafter, statements of income and cash flow for such month and a balance sheet as of the end of such month, prepared in both English and Chinese.
7
(d) SEC Requirement to be Satisfied . Project Companys financial statements shall comply with requirements of the United States Securities and Exchange Commission to the extent applicable to Project Company and any Shareholder or any controlling Person of such Shareholder, to the extent such information is necessary, in conjunction with the financial reporting obligations of such Person under applicable United States Securities and Exchange Commission requirements.
(e) SAP . All reports, accounts, statements, balance sheets and notes thereto prepared by Project Company under this Section 4.3 will be managed through SAP under a license between an Affiliate of Kraton Shareholder and SAP. The fees and expenses related to Project Companys use of such license shall be borne by Project Company.
Section 4.4 Books and Records; Right of Shareholders to Audit .
(a) Proper and complete records and books of account of Project Companys Business, including all such transactions and other matters as are usually entered into records and books of account maintained by businesses of like character or as are required by Applicable Law, shall be kept by Project Company at Project Companys principal place of business, with either party having the right to receive a duplicate copy of all such records at such partys expense, subject, however, to the rights of each party under Section 4.5 .
(b) Each Shareholder and its internal and independent auditors, at the expense of such Shareholder, shall have reasonable access to the internal and independent auditors of Project Company and shall have the right to inspect such books and records and the physical properties of Project Company during normal business hours and, at its own expense, to cause an independent audit thereof. Project Company shall make all books and records of Project Company available to such Shareholder and its internal and independent auditors in connection with such audit and shall cooperate with such Shareholder and auditors to provide any assistance reasonably necessary in connection with such audit.
Section 4.5 Reports and Financial Statements . Project Company shall supply each Shareholder with the financial information necessary to keep such Shareholder informed about how effectively the Business of Project Company is performing. In particular, Project Company shall supply each Shareholder, at Project Companys expense, with:
(a) a copy of each Fiscal Years Business Plan and Annual Budget, as described in Section 8.1 and Section 8.2 ;
(b) Project Companys financial statements and reports described on Exhibit A as soon as reasonably practicable and in any event on or prior to the due date indicated on Exhibit A ; and
8
(c) any other information and reports (including financial, operational and tax related information and reports) reasonably requested by a Shareholder.
Section 4. 6 Taxation .
(a) Other than as set forth in Exhibit F , the Board shall cause to be timely and properly prepared and filed all tax returns of Project Company. Each of the Shareholders shall furnish to Project Company all pertinent information in its possession (or in the possession of its Affiliates) relating to Project Companys operations that is reasonably necessary to enable Project Companys tax returns to be timely and properly prepared and filed. The Board shall cause Project Company to deliver to each of the Shareholders, as promptly as practicable after filing, copies of all tax returns of Project Company. Such returns shall be prepared in accordance with applicable tax laws, rules and regulations, and shall accurately reflect the results of operations of Project Company for such Fiscal Year. Within 90 days after the end of each Fiscal Year, the Board shall cause Project Company to provide to each Person that was a Shareholder at any time during such year that tax information concerning Project Company which is reasonably requested by the Shareholder for purposes of preparing any tax returns of the Shareholder or any of its Affiliates.
(b) The provisions set forth in Exhibit F shall apply to this Agreement.
ARTICLE V
DIRECTORS; BOARD; SHAREHOLDERS MEETINGS
Section 5.1 Directors . Kraton Shareholder and FPCC Shareholder agree that each of them shall, in the capacity of a judicial person, be elected and registered as the Directors of Project Company, and shall jointly represent Project Company externally. Each Director shall appoint three individuals as its representatives (the Directors Representatives ) to jointly act for such Director in exercising its powers and fulfilling its obligations.
Section 5.2 Board of Directors Representatives . The Directors Representatives shall form a Board of Directors Representatives (the Board ), which has responsibility for the supervision of Project Company and its Business. There shall be a total of six Directors Representatives on the Board made up at all times of an equal number of Kraton Directors Representatives and FPCC Directors Representatives. The composition of the initial Board is set forth on Schedule 2 .
Section 5.3 Chairman of the Board . FPCC Shareholder shall appoint one of the FPCC Directors Representatives to serve as Chairman of the Board (the Chairman ). While the Chairman as a Directors Representative is entitled to one vote, the Chairman shall not be deemed to have a deciding vote. If the Chairman is unable to attend any meeting of the Board, FPCC Shareholder shall be entitled to appoint any other FPCC Directors Representative to act as Chairman at a Board meeting.
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Section 5.4 Appointment; Removal . A Director in its sole discretion may appoint a Directors Representative, and remove a Directors Representative whom it appointed, with or without cause, by giving written notice to Project Company and the other Shareholder. The appointment or removal takes effect on the date on which the written notice is received by Project Company or, if a later date is given in such notice, on such later date. A Directors Representative may be an officer, manager or employee of a Shareholder or such Shareholders Affiliate. Each Directors Representative will serve on the Board until his successor is appointed or until his earlier death, resignation or removal.
Section 5.5 No Compensation . No Directors Representative (or Alternate) shall receive from Project Company any compensation for his or her service as a Directors Representative, including attendance at Board meetings. Reimbursement of expenses for attendance at meetings of the Board shall be the sole responsibility of the appointing Director.
Section 5.6 Matters Required To Be Approved by the Board . Except as otherwise expressly provided herein, the following matters require the advance consent of the Board in accordance with Article VI :
Corporate Matters
(i) Amend the Organizational Documents of Project Company for any purpose;
(ii) Amend the Code of Ethics and Business Conduct Policy attached as Exhibit E-1 , the HSE Policy attached as Exhibit E-2 (provided that FPCC Shareholder acknowledges that the HSE Policy will be updated from time to time hereafter to conform with any changes made to the comparable policy of Kraton) and approve and amend any other Policies of Project Company (including the MOBA);
(iii) Approve the initial organizational chart of Project Company;
(iv) Subject to Section 6.7 , terminate, replace, modify or amend any Transaction Document, including this Agreement;
(v) Approve and following approval, terminate, replace, modify or amend the Construction Agreement or the Engineering Agreement;
(vi) Change the formal name or English name of Project Company;
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(vii) Change the authorized or outstanding Registered Capital of Project Company;
(viii) Form a Subsidiary of Project Company;
(ix) Approve and following approval, enter into, terminate, replace, modify or amend, material compensation and benefit plans and policies, material employee policies and material collective bargaining agreements for Project Companys employees;
(x) Modify the insurance coverage of Project Company and the Business described in Schedule 4 ;
(xi) Appoint any Manager (other than the President or the Finance and Administration Manager or a Secondee), or discharge or remove any Manager (other than the President or the Finance and Administration Manager or a Secondee);
(xii) Confirm the appointment of the President and the Finance and Administration Manager or a Secondee, such appointment not to be unreasonably withheld, conditioned or delayed;
(xiii) Authorize the granting or revocation of any power of attorney other than in the ordinary course of business;
(xiv) Except as otherwise provided herein, authorize the dissolution, liquidation, winding-up, merger, consolidation or split, of Project Company;
(xv) File a petition in bankruptcy or seek any reorganization, liquidation or similar relief on behalf of Project Company; consent to the filing of a petition in bankruptcy against Project Company; or consent to the appointment of a receiver, custodian, liquidator or trustee of Project Company or for all or a substantial portion of its property;
Business Plan and Annual Budget
(xvi) Approve any Business Plan or Annual Budget, as well as any amendments, updates or modifications thereto (including the annual updates provided for in Section 8.1 );
(xvii) Authorize expenditures that are in excess of the amounts set forth in an approved Annual Budget other than in accordance with the Policies;
Financing
(xviii) Modify the Capitalization Plan;
(xix) Authorize the incurrence of debt for borrowed money (other than Shareholder loans) and enter into, terminate, replace, modify or amend any loan agreement, credit facility or other instrument evidencing Project Company indebtedness (other than Shareholder loans);
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(xx) Enter into, terminate, replace, modify or amend any mortgage, charge, lien or encumbrance in or over any of Project Companys assets or properties, in each case other than in the ordinary course of business;
(xxi) Enter into, terminate, replace, modify or amend interest rate protection or other hedging agreements (other than hedging agreements in the ordinary course of business);
(xxii) Enter into, terminate, replace, modify or amend any capitalized lease or similar off-balance sheet financing arrangements;
Accounting
(xxiii) Subject to the initial appointment of the Independent Auditor in Section 4.2 , remove the Independent Auditor and appoint a replacement Independent Auditor who is not also the independent accounting firm of Kraton;
(xxiv) Change Project Companys method of accounting as adopted pursuant to Section 4.3 ;
Scope of Business; Acquisitions and Dispositions
(xxv) Cause Project Company, directly or indirectly, to engage, participate or invest in any business, directly or indirectly, outside the scope of its Business as described in Section 1.4 ;
(xxvi) Authorize the sale, lease, Transfer or other disposition in a single transaction or series of related transactions of all or a substantial portion of the Business or assets of Project Company;
(xxvii) Authorize the sale, lease, Transfer or other disposition of assets that individually or in the aggregate are material to the Business;
(xxviii) Authorize the acquisition, directly or indirectly, of all or any portion of a Person;
(xxix) Authorize the acquisition, directly or indirectly, in a single transaction or series of related transactions, of assets having a substantial impact to Project Companys operations;
(xxx) Relinquish Intellectual Property and disclose Intellectual Property to any Person other than in accordance with the terms and conditions of the Technology License and the Confidential Disclosure Agreement, dated as of the date hereof, by and among Project Company, Kraton Shareholder and FPCC Shareholder;
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Commercial Matters
(xxxi) Enter into, amend, modify or terminate (other than pursuant to the terms thereof) any contract or other agreement (i) that is not contemplated by an approved Business Plan and Annual Budget and (ii) the approval of which is not within the discretion of the President under the Policies;
(xxxii) Enter into, amend, modify or terminate (other than pursuant to the terms thereof) any contract or other agreement (i) that is contemplated by an approved Business Plan and Annual Budget and (ii) the approval of which is not within the discretion of the President under the Policies;
Litigation
(xxxiii) Initiate or settle any litigation or governmental proceedings if the effect thereof would be material to the financial condition or operations of Project Company; and
Related Party Agreements
(xxxiv) Subject to Section 6.7 and Article II , enter into, terminate, replace, modify or amend any transaction or agreement with a Shareholder, an Affiliate of a Shareholder, a Directors Representative or other related Person.
The Directors/Shareholders hereby acknowledge and confirm that any authorization or approval by the Board pursuant to this Section 5.6 of the execution, delivery and performance of any agreement or contract entered into by Project Company shall be (i) deemed to have been approved and consented to by each Director and by Project Company and (ii) sufficient to authorize and approve any future performance required by the terms of such agreement or contract (but not amendment to or modification of such agreement or contract), with no further action being required under this Article V or Article VI at the time of any such performance.
Section 5.7 Limitation of Duties and Liabilities . Each Shareholder acknowledges its express intent, and agrees with each other Shareholder, for the benefit of the Directors Representatives of each other Shareholder, that:
(a) the only fiduciary or other duties or obligations, if any, that any Directors Representative will owe in his capacity as Directors Representative will be to the Director/Shareholder that appointed such Directors Representative to serve in that capacity, and the nature and extent of those duties and obligations and the liabilities resulting from any breach thereof constitute an internal governance affair of that Director/Shareholder; and
(b) no Directors Representative of any Director/Shareholder will, under this Agreement, the Company Act of the Republic of China, or otherwise, owe in his capacity as Directors Representative, or be personally liable for, monetary damages for any breach of, any fiduciary or other duties or obligations to Project Company, any other Shareholder or any of its Affiliates or any other Directors Representative.
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Any repeal or modification of this Section 5.7 will be prospective only and shall not adversely affect any limitation of the duties, obligations or liabilities which exists for the benefit of any individual immediately before the effectiveness of that repeal or modification.
Section 5.8 Proxies and Voting Agreements . No Shareholder shall, directly or indirectly, grant any proxies or powers of attorney, deposit or enter into a voting agreement (other than this Agreement) with respect to, any Registered Capital of Project Company.
ARTICLE VI
MEETINGS OF THE BOARD
Section 6.1 Board Meetings .
(a) Regular meetings of the Board shall be held at least twice per year at such dates and times and at such places as shall from time to time be determined in advance by the Board. The Finance and Administration Manager shall deliver an agenda for each regular meeting and a copy of any documents to be discussed to the Directors Representatives at least four Business Days in advance of such meeting. To the extent practical, each agenda for a regular meeting shall specify, to a reasonable degree, the business to be transacted at such meeting. Subject to Section 6.2 , at any regular meeting of the Board at which a quorum is present, any and all business of Project Company may be transacted. All such action shall be formalized in a written consent executed by each Directors Representative, as described in Section 6.4 .
(b) Each Director shall have the right to call one special meeting of the Board per year by any Directors Representative appointed by such Director delivering four weeks advance written notice of a special meeting to each of the other Directors Representatives together with a copy of any documents to be discussed prior to such meeting. Additional special meetings of the Board may be called if at least one Kraton Directors Representative and one FPCC Directors Representative agree in writing. To the extent practicable, each notice of a special meeting shall specify, to a reasonable degree, the business to be transacted at, or the purpose of, such meeting. Notice of any special meeting may be waived before or after the meeting by a written waiver of notice signed by the Directors Representative entitled to notice. A Directors Representatives attendance at a special meeting shall constitute a waiver of notice unless the Directors Representative states at the beginning of the meeting his objection to the transaction of business because the meeting was not lawfully called or convened. Special meetings of the Board shall be held at a mutually agreeable location at such date and time as may be stated in the notice of such meeting. Subject to Section 6.2 , at any special meeting of the Board at which a quorum is present, any and all business of Project Company may be transacted.
(c) Following each meeting of the Board, the Finance and Administration Manager shall promptly draft and distribute minutes of such meeting to the Directors Representatives for approval at the next meeting, and after such approval shall retain the minutes in Project Companys minute books.
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(d) Directors Representatives, at their discretion, may participate in or hold regular or special meetings of the Board by means of a video conference, telephone conference or any comparable device or technology by which all individuals participating in the meeting may hear each other, and participation in such a meeting shall constitute presence in person at such meeting.
(e) Matters not on the agenda or described in the notice of the meeting, or business conducted in relation to those matters, may not be raised at a Board meeting unless all Directors Representatives present agree in writing.
(f) Any action required or permitted to be taken at a meeting of the Board may be taken without a meeting by the consent in writing, setting forth the action to be taken, signed by all Directors Representatives. A counterpart of each such consent to action shall be delivered promptly to each of the Directors Representatives and to the Finance and Administration Manager for placement in the minute books of Project Company, but the failure to deliver a counterpart of any such consent to action to the Finance and Administration Manager shall not affect the validity or effectiveness of such consent to action.
Section 6.2 Quorum . The quorum at any meeting of the Board (including adjourned meetings) is at least two Kraton Directors Representatives and two FPCC Directors Representatives or their respective Alternates present at the meeting. No business shall be conducted at any Board meeting unless a quorum is present at the beginning of the meeting and at the time when there is to be voting on any business.
Section 6.3 Adjournments . A Board meeting shall be adjourned to another time or date at the request of all the Directors Representatives present at the meeting.
Section 6.4 Voting . Subject to Section 6.1(f) , the Board shall make decisions by passing resolutions. A resolution is passed if it is signed and approved by each Directors Representative or such Directors Representatives Alternate in accordance with the Articles of Incorporation and this Article VI .
Section 6.5 Appointment of Directors Representative Alternate . A Kraton Directors Representative or a FPCC Directors Representative who is absent from a Board meeting may appoint any individual (except an existing Directors Representative representing the other Shareholder) to act as his alternate at the meeting (each an Alternate ) by delivering written notice of such appointment to Project Company and each other Directors Representative (which notice may be delivered at the beginning of any Board meeting at which such Alternate will serve). For the purposes of the Board meeting, the Alternate shall be entitled to act and vote for the appointing Directors Representative.
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Section 6.6 Lack of Authority of Persons Other than the Board and Managers .
Except as expressly set forth in this Agreement, no Person or Persons other than (i) the Board, acting in conformity with this Agreement and any applicable Board action, and (ii) the Managers of Project Company appointed in accordance with this Agreement and acting as agents or employees, as applicable, of Project Company in conformity with this Agreement and any applicable Board action, shall be authorized (a) to exercise the powers of Project Company, (b) to manage the Business, property and affairs of Project Company, or (c) to contract for, or incur on behalf of, Project Company, any debts, liabilities or other obligations.
Section 6.7 Control of Related Party Transactions .
(a) Each Directors Representative, based on his knowledge and reasonable judgment at such time, shall disclose to the Board any actual, apparent, or potential financial interest, business interest, competitive interest or other conflict of interest ( Conflict ) such Directors Representative has in any matter or transaction presented for information, consideration or approval of the Board immediately upon becoming aware of such Conflict, unless the nature and extent of such Conflict are known or readily apparent to the Board. No Directors Representative shall be liable to Project Company or the Shareholders if such Conflict has been fully and accurately disclosed to the Board and such Directors Representative has complied with any agreement between the Directors Representative and the Board as to resolution or avoidance of such Conflict.
(b) Any proposed or contemplated transaction involving Project Company as a party, on the one hand, and a Shareholder or its Directors Representative or Affiliate or sister company as a party, on the other hand, shall be a Conflict for purposes of this Section 6.7 and shall be fully disclosed to the Shareholder not involved and whose Directors Representatives and Affiliates are not involved, in such transaction (the Non-Conflicted Shareholder ), and be negotiated and approved by such Non-Conflicted Shareholder (such approval to be by the unanimous approval of the Non-Conflicted Shareholders Directors Representatives) on behalf of Project Company.
(c) Notwithstanding anything to the contrary contained in this Agreement, with respect to any Conflict, the Non-Conflicted Shareholder (through its Directors Representatives) shall have the sole and exclusive power and right for and on behalf, and at the sole expense, of Project Company (i) to control all decisions, elections, notifications, actions, exercises or non-exercises and waivers of all rights, privileges and remedies provided to, or possessed by, Project Company with respect to a Conflict and (ii) in the event of any potential, threatened or asserted claim, dispute or action with respect to a Conflict, to retain and direct legal counsel and to control, assert, enforce, defend, litigate, mediate, arbitrate, settle, compromise or waive any and all such claims, disputes and actions on behalf of Project Company. Each Shareholder shall, and shall cause its Affiliates to, take all such actions, execute all such documents and enter into all such agreements as may be necessary or appropriate to facilitate or further assure the accomplishment of this Section 6.7 .
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(d) The Non-Conflicted Shareholder, in exercising its control, power and rights pursuant to this Section 6.7 , shall act in good faith and in a manner it believes to be in the best interests of Project Company; provided that it shall never be deemed to be in the best interests of Project Company not to pay, perform and observe all of the obligations to be paid, performed or observed by or on the part of Project Company under the terms of any Transaction Document. The Non-Conflicted Shareholder shall act through its Directors Representatives, and the approval of all of the Directors Representatives of the Non-Conflicted Shareholder will be sufficient for the Non-Conflicted Shareholder (and therefore the Board on behalf of Project Company) to take any action in respect of the relevant Conflict. The conflicted Shareholder (or its Affiliates) shall have the right to deal with Project Company and with the Non-Conflicted Shareholder on an arms-length basis and in a manner it believes to be in its own best interests, but in any event must deal with them in good faith.
(e) Upon receipt of any required approval by the Board, all contracts and transactions between Project Company, on the one hand, and a Shareholder or its Directors Representatives or Affiliates, on the other hand, shall be deemed to be entered into on an arms-length basis and to be subject to ordinary contract and commercial law, without any other duties or rights being implied by reason of a Shareholder being a Shareholder or by reason of any provision of this Agreement or the existence of Project Company.
ARTICLE VII
MANAGERS AND EMPLOYEES
Section 7.1 Delegation . The Shareholders acknowledge that the Board is permitted to delegate responsibility for day-to-day operations of Project Company to Managers and employees of Project Company.
Section 7.2 Managers .
(a) The Board may select natural persons who are (or upon becoming an Manager will be) full-time employees of or Secondees to Project Company to be designated as Managers of Project Company, with such titles and duties as the Board shall determine or as may be provided in this Agreement.
(b) The Managers of Project Company shall consist of a President, a Finance and Administration Manager and others as determined from time to time by the Board (collectively, the Managers ).
(c) The President shall be nominated by the Kraton Directors Representatives, and confirmed by the Board, such confirmation not to be unreasonably withheld, conditioned or delayed.
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(d) The Finance and Administration Manager shall be nominated by the FPCC Directors Representatives, and confirmed by the Board, such confirmation not to be unreasonably withheld, conditioned or delayed.
(e) The initial Managers of Project Company are listed on Schedule 3 .
Section 7.3 Term of Managers . Each Manager shall hold office until his death, resignation or removal. Managers shall be full-time employees of, or seconded employees to, Project Company.
Section 7.4 Removal of Managers and Employees .
(a) The President may be removed at any time only by the unanimous action of the Kraton Directors Representatives or, if the President is a Secondee, by the seconding Person.
(b) The Finance and Administration Manager may be removed at any time only by the unanimous action of the FPCC Directors Representatives or, if the Finance and Administration Manager is a Secondee, by the seconding Person.
(c) Except as provided in Section 7.4(a) or (b) , any Manager that is not a Secondee to Project Company may be removed, at any time and for any reason by the Board (acting on the recommendation of the President or a Shareholder).
(d) Except as provided in Section 7.4(a) or (b) , any Manager that is a Secondee to Project Company may be removed, (i) by the seconding Person, or (ii) by the Board (acting on the recommendation of the President) for cause.
(e) Employees of Project Company may be removed by the President.
Section 7.5 Duties .
(a) Each Manager or employee of Project Company shall owe to Project Company, but not to any Shareholder, all such duties (fiduciary or otherwise) as are imposed upon such Manager or employee of a Republic of China limited liability company. Without limitation of the foregoing, each Manager and employee in any dealings with a Shareholder shall have a duty to act in good faith and to deal fairly; provided that no Manager shall be liable to Project Company or to any Shareholder for his good faith reliance on the provisions of this Agreement.
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(b) The policies and procedures of Project Company (including the Policies) adopted by the Board may set forth the powers and duties of the Managers of Project Company to the extent not set forth in or inconsistent with this Agreement. The Managers of Project Company shall have such powers and duties, except as modified by the Board, as generally pertain to their respective offices in the case of a Republic of China limited liability company, as well as such other powers and duties as from time to time may be conferred by the Board and by this Agreement. The Managers and employees of Project Company shall develop and implement management and other policies and procedures consistent with this Agreement, the Policies and the other general policies and procedures established by the Board.
(c) Notwithstanding any other provision of this Agreement, no Shareholder, Directors Representative, Manager, Secondee or employee of Project Company shall have the power or authority, without specific authorization from the Board, to undertake any of the following:
(i) to do any act which contravenes (or otherwise is inconsistent with) this Agreement or which would make it impracticable or impossible to carry on Project Companys Business;
(ii) to confess a judgment or admit material liability against Project Company;
(iii) to possess Project Company property other than in the ordinary course of business; or
(iv) to take, or cause to be taken, any of the actions described in Section 5.6 .
Section 7.6 President . The President shall have general authority and discretion to direct and control the Business and affairs of Project Company, including its day-to-day operations in a manner consistent with the Annual Budget and the most recently approved Business Plan. The President shall take steps to implement all orders and resolutions of the Board. The President shall be authorized to execute and deliver, in the name and on behalf of Project Company, (i) contracts or other instruments authorized by Board action or the Shareholders, and (ii) contracts or instruments in the ordinary course of business (not otherwise requiring Board action or the consent of the Shareholders), except in cases when the execution and delivery thereof shall be expressly delegated by the Board to some other Manager of Project Company, and, in general, shall perform all duties incident to the office of President as well as such other duties as from time to time may be assigned to him by the Board or as are prescribed by this Agreement. In all instances, the Presidents powers under this Section 7.6 shall be subject to the other terms and provisions of this Agreement.
Section 7.7 Finance and Administration Manager . The Finance and Administration Manager shall be responsible for managing the finance affairs of Project Company, including financial planning, analysis and control, accounting, tax, cash administration and control, information systems and human resource matters, in order to safeguard organization assets, maximize profitability and attend to legal obligations as well as business needs for information, analysis and support, and will also perform such other duties as
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may, from time to time, be assigned to him or her by the Board or by the President. The Finance and Administration Manager shall also (i) keep the minutes of all meetings (and copies of written records of action taken without a meeting) of the Board in minute books provided for such purpose and shall see that all notices are duly given in accordance with the provisions of this Agreement, (ii) be the custodian of the records and of the seal of Project Company, if any, (iii) have general charge of books and papers of Project Company as the Board may direct, and (iv) in general, shall perform all duties and exercise all powers incident to the foregoing. In all instances, the Finance and Administration Managers powers under this Section 7.7 shall be subject to the other terms and provisions of this Agreement.
Section 7.8 Vice Presidents . Vice Presidents, if any, shall perform such duties as may, from time to time, be assigned to them by the Board or by the President. In addition, at the request of the President, or in the absence or disability of the President, any Vice President, in any order determined by the Board, temporarily shall perform all (or if limited through the scope of the delegation, some of) the duties of the President, and, when so acting, shall have all the powers of, and be subject to all restrictions upon, the President. In all instances, the Vice Presidents powers under this Section 7.8 shall be subject to the other terms and conditions of this Agreement.
Section 7.9 Assistant Managers . Any assistant manager appointed by the Board shall have power to perform, and shall perform, all duties incumbent upon the Manager he or she is assisting, subject to the general direction of such Manager, and shall perform such duties as this Agreement may require or the Board may prescribe.
Section 7.10 Other Managers . The Board may appoint such other Managers and delegate to them such duties as it sees fit.
Section 7.11 Salaries . Salaries or other compensation of the Managers and employees of Project Company shall be established by the Board consistent with plans approved by the Shareholders. Subject to Section 7.13 and except as approved by the Board, all fees and compensation of the Managers and employees (including Secondees) of Project Company with respect to their services as such Managers and employees shall be payable solely by Project Company and no Shareholder nor its Affiliates shall pay (or offer to pay) any such fees or compensation to any Manager or employee. Notwithstanding the foregoing, fees and compensation payable to seconded employees shall be shared by Project Company and the Shareholder seconding such seconded employee as set forth in the Secondment Agreement.
Section 7.12 Delegation . The Board may delegate temporarily the powers and duties of any Manager of Project Company (other than the President or Finance and Administration Manager), in case of absence or for any other reason, to any other Manager of Project Company, and may authorize the delegation by any Manager of Project Company of any of such Managers powers and duties to any other Manager or employee of Project Company, subject to the general supervision of such delegating Manager.
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Section 7.13 Seconded Employees. If there is a vacancy in a job position in Project Company, either Shareholder shall be entitled to nominate one of its (or its Affiliates) own employees to fill such vacancy pursuant to the Secondment Agreement, subject to renewal or extension by the President with the consent of each Shareholder. Kraton Shareholder shall be the only party entitled to nominate an employee of it or its Affiliate to fill the position of President, and FPCC Shareholder shall be the only party entitled to nominate an employee of it or its Affiliate to fill the position of Finance and Administration Manager.
Section 7.14 General Authority . Persons dealing with Project Company are entitled to rely conclusively on the power and authority of each of the Managers as set forth in this Agreement. In no event shall any Person dealing with any Manager with respect to any business or property of Project Company be obligated to ascertain that the terms of this Agreement have been complied with, or be obligated to inquire into the necessity or expedience of any act or action of the Manager; and every contract, agreement, deed, mortgage, security agreement, promissory note or other instrument or document executed by the Manager with respect to any business or property of Project Company shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the time of the execution or delivery thereof, this Agreement was in full force and effect, (ii) the instrument or document was duly executed in accordance with the terms and provisions of this Agreement and is binding upon Project Company and (iii) the Manager was duly authorized and empowered to execute and deliver any and every such instrument or document for and on behalf of Project Company.
ARTICLE VIII
BUSINESS PLANS, ANNUAL BUDGETS AND LOANS
Section 8.1 Business Plan .
(a) Project Company shall be managed in accordance with a five-year business plan (the Business Plan ), which shall be updated annually on a rolling basis under the direction of the President and presented for approval by the Board pursuant to Section 5.6 as soon as practicable prior to the start of the first Fiscal Year covered by the updated Business Plan, but at least 45 days prior to the start of the first Fiscal Year covered by the updated Business Plan. The Business Plan shall encompass the business, financial and operating plans of Project Company for a five-year period and will anticipate, among other things, target resources required, both material and manpower, a schedule for deployment of such resources, business objectives, internal and external financing, a nominal production schedule, projected income statements, balance sheets and cash flow statements, including the expected timing and amounts of capital contributions and cash distributions, and the planning information required under the other Transaction Documents.
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(b) The initial Business Plan agreed to by the Shareholders, which applies to the period from and after the Execution Date and until December 31, 2016, is attached hereto as Exhibit B . The format and level of detail of each Business Plan shall be consistent with that of the initial Business Plan or the Business Plan most recently approved pursuant to Section 5.6 .
Section 8.2 Annual Budget.
(a) The President shall prepare an Annual Budget (each, an Annual Budget ) for each Fiscal Year, including an Operating Budget and Capital Expenditure Budget and present such Annual Budget for approval by the Board pursuant to Section 5.6 as soon as practicable prior to the start of the Fiscal Year covered by such Annual Budget, but at least 45 days prior to the start of the Fiscal Year covered by such Annual Budget. Each Annual Budget shall be consistent with the information for such Fiscal Year included in the Business Plan most recently approved pursuant to Section 8.1 . Each Annual Budget shall incorporate (i) a projected income statement, balance sheet and cash flow statement, (ii) the amount of any corresponding cash deficiency or surplus, (iii) the estimated amount, if any, and expected timing for all required capital expenditures, (iv) the amount of any anticipated cash deficiency or surplus for distributions to the Shareholders, (v) the estimated amount, if any, of the Shareholder Registered Capital Amount required to be funded and (vi) the estimated amount, if any, of any required Third Party Loans and Shareholder Financing Loans. Each proposed Annual Budget shall be prepared on a basis consistent with Project Companys financial statements.
(b) The initial Annual Budget agreed to by the parties, which applies to the period from and after the Execution Date and until December 31, 2013, is attached hereto as Exhibit C and is incorporated into the initial Business Plan. The format, line items and level of detail of each Annual Budget shall be consistent with that of the initial Annual Budget or the Annual Budget most recently approved pursuant to Section 5.6 .
(c) Each Operating Budget shall constitute an estimate for each applicable period of all operating income, which shall include expenses required to maintain, repair and restore to good and usable condition Project Companys assets.
(d) Each Capital Expenditure Budget shall constitute an estimate for the applicable period of the capital expenditures required to (i) accomplish capital enhancement projects included in the most recently approved Business Plan, (ii) maintain and preserve Project Companys assets in good operating condition and repair and (iii) achieve or maintain compliance with any Environmental Law.
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Section 8.3 Additional Reports.
(a) No later than the 10th Business Day of each month after the Formation Date, Project Company, under the direction of the President, shall issue a monthly report (each a Monthly Business Report ) to each Shareholder that contains, among other things, (i) if prepared before acceptance of the Plant from the Construction Contractor, information regarding engineering, construction, permitting and commissioning of the Plant as well as an assessment of how construction, commissioning and start-up activities are progressing relative to the then-current Business Plan, Annual Budget and project schedule established under the Construction Agreement for the Plant, and (ii) if prepared following acceptance of the Plant from the Construction Contractor, information regarding production, quality, Fixed and Variable Costs (both such terms as defined in the Offtake Agreement) as well as an assessment of how the Business is performing relative to the then-current Business Plan and Annual Budget. Each Monthly Business Report shall be substantially in the form attached as Exhibit D , and shall also include such additional information as is reasonably requested by a Shareholder in order to keep each Shareholder fully apprised of the performance of the Business.
(b) Project Company shall also provide such other reports and information required by the other Transaction Documents.
Section 8.4 Implementation of Business Plan and Discretionary Expenditures by President.
(a) After a Business Plan and Annual Budget has been approved by the Board (or developed in accordance with Section 11.1 ), the President shall be authorized, without further action by the Board, to cause Project Company to make expenditures consistent with such Business Plan and Annual Budget; provided , however , that all internal control policies and procedures, including those regarding the required authority for certain expenditures, shall have been followed.
(b) In any emergency, the President or the Presidents designee shall be authorized to take such actions and to make such expenditures as may be reasonably necessary to react to the emergency, regardless of whether such expenditures have been included in an approved Business Plan or Annual Budget. Promptly after learning of an emergency, the President or such designee shall notify the Board of the nature of the emergency and the response that has been made, or is committed or proposed to be made, with respect to the emergency.
Section 8.5 Transaction Documents . The Shareholders acknowledge and agree that performance of Project Company under each Transaction Document to which it is a party is a fundamental consideration to entry into this Agreement. Accordingly, the Shareholders and Board shall work in good faith and in a commercially reasonable manner to cause Project Company to implement the terms and conditions of this Agreement and each other Transaction Document to which Project Company is a party.
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ARTICLE IX
ADDITIONAL SHAREHOLDER COVENANTS
Section 9.1 Non-Compete. Before the date that is three years after the earlier of (x) dissolution of Project Company in accordance with Article XII , or (y) the date on which FPCC Shareholder or its Affiliate is no longer a Shareholder, FPCC Shareholder on its behalf and on behalf of its Affiliates and, under a written authorization between FPCC Shareholder and Formosa Synthetic Rubber Company, Formosa Synthetic Rubber Company and its Subsidiaries, (collectively, the FPCC Non-Compete Entitie s ) hereby agrees that it and they shall not:
(a) carry on or be engaged, concerned or interested, directly or indirectly, whether as a shareholder, partner, member, director, employee, contractor, agent or otherwise, anywhere in the world, in any business similar to or competing with the Business (including the design, construction, operation or ownership, directly or indirectly, of an HSBC production facility, and production, marketing or sale of HSBC), or
(b) assist any other Person in carrying on or being engaged, concerned or interested in, directly or indirectly, any business similar to or competing with the Business.
This Section 9.1 is for the benefit and protection of Kraton and each of its Affiliates, including Kraton Shareholder. FPCC Shareholder acknowledges and agrees that (i) its agreement to this Section 9.1 and willingness to make on behalf of, and bear responsibility for violations of, this Section 9.1 by any of the FPCC Non-Compete Entities is a fundamental consideration for Kraton Shareholder and its Affiliates to enter into this Agreement and the other Transaction Documents to which any of them is party and to consummate the transactions contemplated hereby and thereby, and (ii) Kraton and each of its Affiliates would suffer irreparable injury and may seek monetary damages for such injury under this Agreement if any of the FPCC Non-Compete Entities were to violate the provisions of this Section 9.1 .
Section 9.2 Phase II Plant Expansion. Until the second anniversary of the date of final acceptance of the Plant from the Construction Contractor, Kraton Shareholder may cause Project Company to pursue the Phase II expansion of the Plant. If Kraton Shareholder elects to cause Project Company to pursue the Phase II expansion, FPCC Shareholder agrees to cooperate and join in such expansion; provided , however , that any such expansion will be subject, in all respects, to substantially the same terms and conditions applicable to Project Companys ownership and operation of the Plant. As used herein, Phase II expansion means an increase in the production capacity of the Plant by up to an additional 30 kt per Year (based on 287 operating days) of HSBC.
Section 9.3 USBC Business. FPCC Shareholder on its behalf and on behalf of each FPCC Non-Compete Entity hereby agrees, on the one hand, and Kraton Shareholder on its behalf and on behalf of Kraton and each Subsidiary of Kraton hereby agrees, on the other hand, that if any of them desires to produce USBC in Taiwan (a USBC Proposing Party ), then at the election of the other party, the USBC
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Proposing Party shall enter into good faith negotiations with the other party regarding the possible joint investment in USBC capacity in Taiwan. Any such joint investment may be structured as (but is not limited to) (i) an expansion of Project Companys Business to include production, sale and marketing of USBC through an expansion of the Plant, (ii) direct or indirect investment in or acquisition of another Person in Taiwan, or (iii) the license of USBC technology from the applicable Kraton entity to the applicable FPCC Non-Compete Entity on commercially reasonable terms. If the applicable FPCC Non-Compete Entity and the applicable Kraton entity elect to enter into the USBC business, the parties thereto shall work together and negotiate in good faith the terms of the definitive written documentation implementing such joint investment as promptly as practicable. Notwithstanding the provisions of this Section 9.3 , no FPCC Non-Compete Entity or Kraton entity is obligated to participate in any such joint investment project. This provision shall remain in effect until the date that is five years after the date of final acceptance of the Plant from the Construction Contractor.
Section 9.4 Plant Shut-Down. If at any time after the Execution Date, (i) a Governmental Authority requires that construction of the Plant or Plant Site be delayed or halted, or that operations on the Plant Site or within the Mailiao Industrial Park be shut-down for inspection or otherwise, or the Plant is shut-down (other than for planned maintenance and turnarounds or Force Majeure), in each case for a period of three months or more, and (ii) in the reasonable good faith opinion of a Shareholder, such delay, halt or shut-down causes material financial or material operational hardship to such Shareholder (provided, however, that the failure to receive distributions from Project Company, or of Project Company to pay operating expenses or purchase feedstock, shall not be considered a material financial or material operational hardship), then in addition to all other remedies available to Project Company or a Shareholder at equity and under law, the Shareholder suffering such material financial or operational hardship may, in its discretion, initiate the Dissolution Procedures and liquidation provisions set forth in Article XII by delivering written notice to the other Shareholder (a Dissolution Notice ), which liquidation procedures will be initiated immediately. Nothing in this Section 9.4 shall be construed to limit the remedies available to Project Company and a Shareholder at equity and under law for the failure of the Plant to operate (other than for planned maintenance and turnarounds or Force Majeure).
ARTICLE X
TRANSFERS AND PLEDGES
Section 10.1 Restrictions on Transfer and Prohibition on Pledge.
(a) A Shareholder shall not, in any transaction or series of transactions, directly Transfer all or any part of its Registered Capital without the prior written consent of the other Shareholder, which consent may be withheld, conditioned or delayed in such Shareholders sole discretion. The election of a Shareholder not to exercise any right of first refusal (or other purchase right) under the laws of the Republic of China applicable to Transfers of Registered Capital shall not be deemed a consent to such Transfer for purposes of this Agreement. If a Shareholder elects to exercise its right of first refusal (or other purchase
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right) under the laws of the Republic of China applicable to Transfers of Registered Capital, such Shareholder may, at its option and at its sole election, pay the consideration for such purchase in three equal interest-free installments payable on each of the closing date of such purchase and on the first and second anniversaries of such purchase. The foregoing restrictions on Transfer of a Shareholders Registered Capital shall not restrict a Shareholder from Pledging all or a portion of its Registered Capital or its interest in Project Company to a lender.
(b) Notwithstanding the foregoing, any Shareholder may Transfer all of its Registered Capital to any Wholly Owned Affiliate of such Shareholder with the prior written consent of the other Shareholder, which consent shall not be unreasonably withheld, conditioned or delayed, and subject to receipt of FIA approval, if applicable. Each Shareholder hereby waives and agrees not to exercise any right of first refusal (or other purchase right) under the laws of the Republic of China applicable to Transfers of Registered Capital to a Wholly Owned Affiliate in accordance with this Section 10.1(b) . Any transferee under this Section 10.1(b) shall execute an instrument reasonably satisfactory to all Shareholders accepting the terms and provisions of this Agreement. Upon consummation of a Transfer in accordance with this Section 10.1(b) , the transferee shall immediately, and without any further action of any Person, become a Shareholder.
(c) Except as provided in Section 10.2 , a Shareholder shall not, in any transaction or series of transactions, Transfer all or any part of a Shareholder loan other than to an Affiliate of such Shareholder or Third Party lender with the prior written consent of the other Shareholder, which consent shall not be unreasonably withheld, conditioned or delayed, and subject to receipt of FIA approval, if applicable.
Section 10.2 Transfer of Transaction Documents and Shareholder Loans.
(a) Notwithstanding any Transfer made in accordance with Section 10.1 , neither Shareholder nor its Affiliates may Transfer its rights or obligations under any Transaction Document to the transferee of its Registered Capital or otherwise without the prior written consent of the non-Transferring Shareholder (or its Affiliate who is counterparty to such Transaction Document), which consent may be withheld, conditioned or delayed in the non-Transferring Shareholders (or, as applicable, its Affiliates) sole discretion.
(b) Any Transfer of all or a portion of a Shareholders Registered Capital to a Third Party or an Affiliate of such Shareholder shall include the Transfer of a proportionate share of all outstanding Shareholder loans issued to or on behalf of such Shareholder.
Section 10.3 Minimum Requirements of a Transferee. Notwithstanding the provisions of this Article X , or a Shareholders election not to exercise any right of first refusal or other purchase right under the laws of the Republic of China applicable to Transfers of Registered Capital, a Shareholder may Transfer its Registered Capital to a Third Party only if all of the following occur in addition to obtaining prior written consent to the Transfer in accordance with Section 10.1(a) :
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(i) The Transfer is accomplished in a non-public offering in compliance with, and exempt from, the registration and qualification requirements of all applicable securities laws and regulations;
(ii) The Transfer does not cause a default under any material contract to which Project Company is a party or by which Project Company or any of its properties is bound;
(iii) The proposed transferee executes an appropriate agreement accepting the terms and provisions of this Agreement;
(iv) The transferor or proposed transferee bears all reasonable costs incurred by Project Company in connection with the Transfer;
(v) Performance of all obligations (including payment obligations) under this Agreement and each other agreement that is Transferred by the proposed transferee is guaranteed by the ultimate parent company of such proposed transferee;
(vi) Neither the Transferring Shareholder nor the proposed transferee is in default in the timely performance of any of its material obligations to Project Company or under any Transaction Document;
(vii) The proposed transferee is not in the HSBC business, including by directly or indirectly through its Affiliates or investments, being an operator of an HSBC facility or otherwise producing or marketing HSBC; and
(viii) The proposed transferee does not, in the reasonable opinion of the non-transferring Shareholder, have a history of violations of laws regarding anticompetitive activities, anticorruption and antibribery, such as the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act, Republic of China anti-bribery laws, Netherlands anti-bribery laws or any other applicable anti-bribery laws, including laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Section 10.4 Remedies for Breaches of this Article X. If a Shareholder Transfers all or a portion of its Registered Capital or a Shareholder loan other than in strict compliance with the terms and conditions of this Article X , then, in addition to (and not in lieu of) all other remedies available at equity and under law (including damages) and dissolution right set forth in Section 12.1(d) , and without giving effect to the waiver of damages set forth in Section 6 of Appendix B , the Transferring Shareholder shall immediately pay to the non-Transferring Shareholder US$100,000,000 as additional liquidated damages and not as a penalty, plus interest at a rate equal to the lesser of LIBOR plus 1,000 basis points and the maximum rate allowed under Applicable Law, calculated from the effective date of such Transfer up to and including the date of payment, compounded daily, by wire transfer of immediately available funds to an account designated by the non-Transferring Shareholder. If payment of the US$100,000,000 in additional liquidated damages is declared to be unenforceable or invalid, in whole or in part, for any reason, then, without limiting any other remedies (including damages) available to the non-Transferring Shareholder at equity and under law, the additional liquidated damages payable by the Transferring Shareholder under this Section 10.4 shall equal the maximum amount of liquidated damages available under Applicable Law.
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Section 10.5 Withdrawal by a Shareholder. No Shareholder shall be entitled to withdraw from this Agreement or from Project Company without the prior written consent of the other Shareholder, which consent may be withheld in the consenting Shareholders sole discretion.
ARTICLE XI
DEADLOCK, DEFAULT AND REMEDY
Section 11.1 Failure to Approve Business Plan or Annual Budget . Notwithstanding the provisions of Section 5.6 and Article VIII , if the Board has not agreed upon and approved an updated Business Plan by the first day of the first Fiscal Year that would have been covered by such Business Plan, then:
(a) For such Fiscal Year and each subsequent Fiscal Year prior to approval of an updated Business Plan, the President shall prepare (and promptly furnish to the Board) an updated Annual Budget consistent with the projections and other information for that Fiscal Year included in the Business Plan most recently approved pursuant to Section 8.1 ; provided , however , that the President, acting in good faith, shall be entitled to modify any such Annual Budget in order to satisfy current contractual and compliance obligations and to account for other changes in circumstances resulting from the passage of time or the occurrence of events beyond the control of Project Company; and provided further that Project Company shall be entitled to incur and pay, and the Shareholders shall be obligated to fund or authorize Third Party Loans to cover Mandatory Expenses.
(b) If the Board is unable to agree on a Business Plan within 30 days after the first day of the Fiscal Year that would have been covered by such Business Plan, then at least one Senior Representative of each Shareholder shall meet together within five Business Days following the expiration of such 30-day period (which meeting may be held by video conference or telephone conference) and negotiate in good faith to agree upon a Business Plan.
(i) If the Senior Representatives agree in writing upon a Business Plan for Project Company, then such Business Plan shall be deemed to be the approved Business Plan for such Fiscal Year for all purposes hereunder, without the necessity of further action by the Board or the Shareholders, and the then-current Annual Budget shall be modified to reflect the approved Business Plan, if necessary.
(ii) If the Senior Representatives are unable to agree upon a Business Plan for Project Company for each of two consecutive Fiscal Years, then either Shareholder may initiate the Dissolution Procedures and liquidation provisions set forth in Article XII by delivering a Dissolution Notice to the other Shareholder.
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Section 11.2 Environmental and Safety . In the event that (i) a circumstance arises or event occurs that constitutes a material violation of the HSE Policy attached hereto as Exhibit E , or (ii) either Shareholder notifies the Board of a material safety or Environmental concern with respect to the continued operation of the Plant (any matter described in clause (i) or (ii) , an Environmental or Safety Matter ), then either Shareholder may implement the resolution procedures set forth in this Section 11.2 upon written notice to the other Shareholder:
(a) At least one Senior Representative of each Shareholder shall meet together (which meeting may be held by video conference or telephone conference) within five Business Days following receipt of any such written notice and negotiate in good faith to agree to a course of action to address such Environmental or Safety Matter.
(i) If the Senior Representatives agree in writing upon a course of action, they shall jointly issue a statement setting out the terms of such agreement and each Shareholder shall exercise the voting rights and other powers of control available to it in relation to Project Company to ensure that the terms of such agreement are implemented, and Project Company shall do all things within its power to implement such terms.
(ii) If the Senior Representatives are unable to agree upon a course of action within three Business Days following the first meeting of the Senior Representatives pursuant to Section 11.2(a)(i) , then (1) the President shall in any event be authorized to take such action as is reasonably required to ensure Project Company becomes or remains in compliance with Environmental Law and HSE Policy (including by causing Project Company to make related capital expenditures), and (2) either Shareholder may initiate the Dissolution Procedures and liquidation provisions set forth in Article XII by delivering a Dissolution Notice to the other Shareholder (in which event the Liquidation Commencement Date may, at the option of the Shareholder delivering the Dissolution Notice, occur before the first anniversary of the date of such Dissolution Notice).
Section 11.3 Board Deadlock. In the event that the Board (i) fails to reach agreement and resolve to take action on any matter requiring Board approval under Section 5.6 (other than those matters described in Section 11.1 and Section 11.2 ), and (ii) the failure to reach agreement and take action both materially impairs the operation of the Plant or the ability of Project Company to satisfy its obligations under the Transaction Documents and persists for more than six months, then either Shareholder may implement the resolution procedures set forth in this Section 11.3 upon written notice to the other Shareholder:
(a) Within 10 Business Days after receipt of such notice, each Shareholder shall cause its Directors Representatives to prepare and circulate to the other partys Directors Representatives no later than 30 days after the date of such notice a memorandum setting out such Shareholders position on the matter or matters in dispute and its reasons for adopting such position.
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(b) At least one Senior Representative of each Shareholder shall meet together (which meeting may be by video conference or telephone conference ) within 10 Business Days following receipt of the memorandum and negotiate in good faith to agree to a course of action to resolve the Deadlock.
(i) If the Senior Representatives agree in writing upon a course of action, they shall jointly issue a statement setting out the terms of such agreement and each Shareholder shall exercise the voting rights and other powers of control available to it in relation to Project Company to ensure that the terms of such agreement are implemented and Project Company shall do all things within its power to implement such terms.
(ii) If the Senior Representatives are unable to agree upon a course of action within 40 Business Days following the first meeting of the Senior Representatives pursuant to Section 11.3(b) , then either Shareholder may initiate the Dissolution Procedures and liquidation provisions set forth in Article XII by delivering a Dissolution Notice to the other Shareholder.
Section 11.4 Mediation . In the event any matter described in Section 11.1 , Section 11.2 or Section 11.3 is referred to the Senior Representatives of the Shareholders for resolution, and notwithstanding the dispute resolution procedures set forth in Section 14.3 , either Shareholder shall have the right, upon notice to the other Shareholder, to cause Project Company to appoint an expert pursuant to the International Chamber of Commerce Rules for Expertise to mediate the discussions between the Senior Representatives and facilitate (but shall have no authority to require) negotiation of a resolution. Any mediation hereunder shall be administered by the International Chamber of Commerce in accordance with its Rules for Expertise and shall be conducted in accordance with such Rules for Expertise except as they may be inconsistent with the provisions of this Section 11.4 . The cost of any such expert and fees and expenses of the International Chamber of Commerce shall be borne by Project Company.
Section 11.5 Events of Default .
(a) It shall be an event of default of a Shareholder under this Agreement if:
(i) such Shareholder does not make available to Project Company funding in accordance with the terms of any obligation to pay to Project Company amounts due and such default is not remedied within 10 Business Days following receipt of a written notification of failure to fund, served by Project Company on such Shareholder detailing such default; or
(ii) such Shareholder or its Affiliate commits a breach of Section 11.1 , Section 11.2 or Section 11.3 by its failure to comply with the procedures set forth in these Sections, or
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(iii) such Shareholder or its Affiliate is in material default under a Transaction Document (other than this Agreement) under the terms of such Transaction Document, and, if such material breach is capable of remedy, either (x) fails to remedy the same within 30 days after notice to do so is given by the other Shareholder, or (y) if such breach cannot be cured within said 30 day period, fails within said 30 days to establish plans and commence action to remedy the breach in a manner reasonably satisfactory to the other Shareholder, and thereafter continues to diligently carry out such plans and remedy.
(b) In addition to the events of default described in subsection (a) above, it shall be an event of default of FPCC Shareholder under this Agreement if any of the FPCC Non-Compete Entities engages in any action that does or is reasonably expected to violate the non-compete provisions set forth in Section 9.1 . The events of default described in this Section 11.5 are referred to collectively herein as Events of Default and each individually as an Event of Default .
Section 11.6 Consequences of an Event of Default .
(a) If a Shareholder becomes aware that an Event of Default has occurred or is reasonably expected to occur in relation to the other Shareholder or its Affiliate (if applicable) (the Defaulting Shareholder ) then, without prejudice to the Defaulting Shareholders obligations under this Agreement and to any other rights or remedies available to the non-defaulting Shareholder or Project Company with respect to the Defaulting Shareholder, the parties shall use reasonable best efforts to negotiate a resolution of such Event of Default.
(b) If the Event of Default is not cured within six months after notice thereof (or, with respect to a breach of Section 9.1 , within 30 days after notice thereof), or if the Defaulting Shareholder fails to use its reasonable best efforts during such six-month period to cure such Event of Default (or, with respect to a breach of Section 9.1 , any FPCC Non-Compete Entity, as applicable, does not cure such Event of Default during the one-month cure period), the non-Defaulting Shareholder may initiate the Dissolution and liquidation provisions set forth in Article XII by delivering a Dissolution Notice to the Defaulting Shareholder.
(c) Notwithstanding any Event of Default, Project Company shall continue to comply with all of its contractual obligations, including those under each Transaction Document, and the Shareholders shall use reasonable best efforts to continue to work together and operate the Plant.
Section 11.7 Material Economic Change . If any Shareholder (the Affected Shareholder ) believes in good faith that it or its Affiliates economic benefits are adversely affected in a material manner after the Execution Date by a material change in the business condition or environment related to Project Company or the Business or any other Transaction Document, including with respect to Kraton Shareholder as a result of a breach of Section 9.1 where such Event of Default is not timely cured by the breaching entity and Kraton Shareholder has not elected to dissolve Project Company pursuant to Section 11.6(b) , the following provisions of this Section 11.7 shall apply:
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(a) An Affected Shareholder shall have the right to request an economic adjustment to the terms and conditions of this Agreement and each other affected Transaction Document;
(b) The requesting Affected Shareholder shall bear the burden of reasonably establishing, to the extent reasonably possible through quantitative means and independent advisor opinions, the adverse and material impact alleged by such Affected Shareholder;
(c) The Shareholders shall promptly consult with each other and use their reasonable best efforts to implement any adjustments to this Agreement and the other Transaction Documents so as to maintain to the fullest extent possible the Affected Shareholders economic benefits derived from this Agreement or the other Transaction Documents. Such efforts shall include appointment of an expert pursuant to Section 11.4 to explore possible solutions on terms to be agreed by the Shareholders; provided , however , that any such expert may facilitate, but shall not require, that the parties agree to adjustments to the Transaction Documents;
(d) Any such adjustments shall restore to the Affected Party and its Wholly Owned Affiliates the economic benefits substantially similar (after giving effect to the then-current economic environment and market for HSBC products) to the economic benefits it would have derived if such material change in the business condition or environment related to Project Company or the Business or any other Transaction Document had not arisen; and
(e) If the parties are unable to negotiate an adjustment to the Transaction Documents under this Section 11.7 after using their reasonable best efforts to do so, then either Shareholder may initiate the Dissolution and liquidation provisions set forth in Article XII by delivering a Dissolution Notice to the other Shareholder.
ARTICLE XII
DISSOLUTION, TERMINATION AND LIQUIDATION
Section 12.1 Dissolution Events . Project Company may be dissolved and liquidated in accordance with this Article XII :
(a) upon mutual agreement of the parties;
(b) as provided in Article XI ;
(c) if the Board and Shareholders elect not to rebuild the Plant following a material condemnation or casualty event at the Plant or Plant Site that makes continued production of HSBC impossible without expending significant money, time and other resources (in which event the Liquidation Commencement Date shall be immediately following such election); or
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(d) if a Shareholder Transfers its Registered Capital without the prior written consent of the other Shareholder, by the non-Transferring Shareholder by delivery of a Dissolution Notice to the Transferring Shareholder.
Section 12.2 Dissolution Procedures . If a Shareholder delivers a Dissolution Notice, then the Board shall cause Project Company to be dissolved and its assets sold and distributed in accordance with the following procedures (the Dissolution Procedures ):
(a) Except as otherwise agreed by the Shareholders in writing, the liquidation of Project Company shall not commence before the earlier of the date on which each Shareholder confirms that such Shareholder has made reasonably comparable alternative commercial arrangements to replace the sale of its or its Affiliates product to, or offtake of HSBC from, Project Company, as applicable; provided , however , that except as otherwise provided herein, in no event will the liquidation commence before the first anniversary of the date of the Dissolution Notice or after the third anniversary of the date of the Dissolution Notice (the Liquidation Commencement Date ). Notwithstanding the foregoing, Kraton Shareholder shall have the right to determine the Liquidation Commencement Date, which may be earlier than the first anniversary of the date of the applicable Dissolution Notice, in any liquidation of Project Company that is initiated by Kraton Shareholder following a breach of Section 9.1 ;
(b) Prior to the Liquidation Commencement Date, Project Company shall continue to own, operate and maintain the Plant in compliance with HSE Policy, all other Policies, and good industry practice, and shall comply with its contractual obligations under each of the Transaction Documents, including the production of HSBC for sale to Kraton Shareholder or its Affiliate under the Offtake Agreement;
(c) Project Company shall take reasonable steps to cause all Third Party agreements to which Project Company is a party to terminate effective as of a date that is on or before the Liquidation Commencement Date;
(d) Upon the Liquidation Commencement Date, each other Transaction Document shall be terminated; and
(e) As soon as reasonably practicable following the Liquidation Commencement Date, (i) the Plant shall be dismantled and the Equipment and other personalty comprising the Plant shall be marketed and sold to Third Parties for its Fair Market Value, (ii) an Affiliate of Kraton Shareholder will purchase any remaining HSBC in Project Companys inventory for the Fair Market Value of such inventory and (iii) the net proceeds from the sale of the HSBC inventory, Equipment and other personalty comprising the Plant, as well as any other remaining assets of Project Company, shall be distributed in accordance with Section 3.1 .
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Section 12.3 Termination . This Agreement shall terminate upon completion of the liquidation of Project Company pursuant to Section 12.2(e) ; provided , however , that the following provisions of this Agreement shall remain in full force after termination hereof: Section 5.7 , Section 9.1 , Article XIII , Article XIV and Sections 1 (Agreement Interpretation), 4 (Notices), 6 (No Consequential or Special Damages) and 9 (Public Announcements), in each case of Appendix B , as well as any definitions in Appendix A necessary to understand the surviving provisions. Termination of this Agreement shall not alter the then-existing claims, if any, of a Shareholder for breaches of this Agreement occurring prior to the termination date and the obligations of the Shareholders with respect thereto shall survive termination.
Section 12.4 Notice of Retention . Where any Shareholder is required by any Applicable Law, regulation or Governmental Authority to retain any proprietary information (or copies of such information) of the other Shareholder or Project Company, it shall notify the other Shareholder in writing of such retention giving details of the information that it has been required to retain.
ARTICLE XIII
INDEMNIFICATION
Section 13.1 Indemnification . A Defaulting Shareholder shall indemnify Project Company and any non-defaulting Shareholder against any Losses suffered or incurred:
(a) as a direct result of any default by the Defaulting Shareholder in the performance of any of the obligations expressed to be performed by it under this Agreement or as the result of an occurrence of an Event of Default which has occurred in relation to such Defaulting Shareholder; or
(b) in connection with the enforcement, preservation or protection of any rights against the Defaulting Shareholder under this Agreement.
Section 13.2 Indemnification Procedures . All claims for indemnification under this Article XIII shall be asserted and resolved as set forth in Section 7 of Appendix B .
ARTICLE XIV
GENERAL PROVISIONS
Section 14.1 Miscellaneous Provisions . The provisions set forth in Appendix B shall apply to this Agreement.
Section 14.2 Governing Law . This Agreement and the rights and duties of the parties arising out of this Agreement shall be governed by, and construed in accordance with, the substantive laws of the Republic of China, without reference to the conflict of laws rules thereof that would direct the application of the laws of another jurisdiction.
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Section 14.3 Dispute Resolution . The parties shall use their reasonable best efforts to resolve all disputes relating to this Agreement by good faith negotiations. If a party gives notice to the other party that a dispute has arisen, and the parties are unable within 20 Business Days of such notice to resolve the dispute, then it shall be referred to an officer or manager of each of Kraton Shareholder and FPCC Shareholder, in each case that is not on the Board and who has no decision-making authority with respect to Project Company. If such officers/managers are unable within 20 Business Days to resolve the dispute, then it shall be referred to an executive officer of each party or its Affiliate with decision-making authority who has not previously been involved in the dispute. If such individuals are unable within 20 Business Days to resolve the dispute, then either party may submit the dispute to mediation in accordance with the provisions of Appendix C . Any dispute not resolved through mediation in accordance with the provisions of Appendix C shall be finally resolved by arbitration in accordance with the provisions of Appendix C .
Section 14.4 Ethical Business Practices . The Shareholders shall comply, and shall cause Project Company to comply, with the provisions of Appendix D .
Section 14.5 Conflicting Provisions . The several parts of, and attachments to, this Agreement are intended to be interpreted as mutually explanatory of one another. In the case of any conflict or inconsistency between or among the body of this Agreement or Appendix A , on the one hand, and any other Appendix or Exhibit, on the other hand, the provisions of the body of this Agreement and Appendix A shall govern. In the case of any other conflict or inconsistency between or among the provisions of the body of this Agreement or any Appendix, the provision addressing the matter in more detail shall govern.
Section 14.6 Language . This Agreement shall be written in both the Chinese and the English languages. Both languages shall have equal authenticity; provided , however , in the event of conflict between the different versions, the English language version shall control.
[Signature page follows]
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IN WITNESS WHEREOF , the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.
KRATON SHAREHOLDER: | ||
KP INVESTMENT BV | ||
By: |
/s/ Kevin M. Fogarty |
|
Kevin M. Fogarty | ||
Authorized Representative | ||
FPCC SHAREHOLDER: | ||
FORMOSA PETROCHEMICAL CORPORATION | ||
By: |
/s/ Tsao Mihn |
|
Tsao Mihn | ||
President | ||
PROJECT COMPANY: | ||
For and on behalf of
|
||
(KRATON FORMOSA POLYMERS CORPORATION) | ||
The Preparatory Office for
|
||
By: |
/s/ Michael S. Wong |
|
Michael S. Wong | ||
Authorized Representative | ||
By: |
/s/ His-Tse Li |
|
Hsi-Tse Li | ||
Authorized Representative |
[Signature Page to the Shareholder Agreement]
I hereby confirm that this Agreement has been ratified at a duly convened meeting or pursuant to a written consent of the Board of
|
||
|
||
(KRATON FORMOSA POLYMERS CORPORATION) | ||
By: |
/s/ Michael S. Wong |
|
Michael S. Wong | ||
President |
[Signature Page to the Shareholder Agreement]
APPENDIX A
Definitions
Adjusted Capital Account Deficit has the meaning set forth in Section 1 of Exhibit F .
Adjustment has the meaning set forth in Section 5(b) of Exhibit F .
Affected Shareholder has the meaning set forth in Section 11.7 .
Affiliate of any Person means any other Person directly or indirectly controlling, directly or indirectly controlled by or under direct or indirect common control with such Person. As used in this definition, the term control, controlling or controlled by means the possession, directly or indirectly, of the power either to (a) vote 50% or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such Person or (b) direct or cause the direction of the actions, management or policies of such Person, whether through the ownership of voting securities or interests, by contract or otherwise, excluding in each case, any lender of such Person or any Affiliate of such lender. Notwithstanding the foregoing, in no event shall Project Company be deemed to be an Affiliate of Kraton or any of its Affiliates or FPCC Shareholder or any of its Affiliates.
Agreement has the meaning set forth in the Preamble.
Alternate has the meaning set forth in Section 6.5 .
Allocation Year has the meaning set forth in Section 1 of Exhibit F .
Annual Budget has the meaning set forth in Section 8.2(a) .
Applicable Law means any constitution, law, statute, ordinance, order, injunction, rule, regulation or Authorization of any Governmental Authority (excluding any such legislative, judicial or administrative body or instrumentality acting in any capacity as a lender, guarantor or mortgagee) applicable to a party or its Affiliate or the subject matter of this Agreement.
Arbitral Tribunal has the meaning set forth in Section 4.1 of Appendix C .
Authorizations means licenses, certificates, permits, orders, approvals, determinations, variances, franchises and authorizations from Governmental Authorities.
Basic Design Engineering Package Agreement means the Basic Design Engineering Package Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company, as the same may be amended, supplemented, modified, renewed or extended from time to time by agreement of the parties thereto.
Board has the meaning set forth in Section 5.2 .
Book Value has the meaning set forth in Section 1 of Exhibit F .
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Business has the meaning set forth in Section 1.4 .
Business Day means a day of the year that is not a Saturday, Sunday or other day on which the banks are generally closed in the Republic of China.
Business Plan has the meaning set forth in Section 8.1(a) .
Capital Account has the meaning set forth in Section 1 of Exhibit F .
Capital Expenditure Budget has the meaning set forth in Section 8.2(d) .
Capitalization Plan means the initial capitalization plan of the parties as set forth in Exhibit G to this Agreement.
Chairman has the meaning set forth in Section 5.3 .
Claim Notice has the meaning set forth in Section 7(b) of Appendix B .
Code means the U.S. Internal Revenue Code of 1986.
Conflict has the meaning set forth in Section 6.7(a) .
Construction Agreement means the Construction Agreement for construction of the Plant to be entered into between Project Company and the Construction Contractor, as the same may be amended, supplemented, modified, renewed or revoked from time to time by agreement of the parties thereto.
Construction Contractor means the Third Party construction contractor retained by Project Company to construct the Plant.
Country of Jurisdiction has the meaning set forth in Section 4.14 of Appendix C .
CTCI means CTCI Corporation, a company based in Taipei, Taiwan.
Deadlock means any situation which has persisted for not less than six months in which (a) by virtue of a substantial disagreement amongst the Shareholders, whether at Board or Shareholder level or both, and which is manifested by an equality of votes at any meeting of the Board or (b) by virtue of an inability to form a quorum at any meeting or adjourned Board meeting, a matter which is material to Project Company or the Business cannot be resolved. The Deadlock shall be deemed to have arisen on the expiry of the six month period referred to above.
Default Rate means a per-annum rate of interest equal to the lesser of (a) LIBOR plus 1,000 or (b) the maximum rate of interest permitted to be charged by Applicable Law.
Defaulting Shareholder has the meaning set forth in Section 11.6(a) .
Depreciation has the meaning set forth in Section 1 of Exhibit F .
Directors has the meaning set forth in Section 5.1 .
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Directors Representatives has the meaning set forth in Section 5.1 .
Dispute has the meaning set forth in Section 2.1 of Appendix C .
Dissolution Notice has the meaning set forth in Section 9.4 .
Dissolution Procedures has the meaning set forth in Section 12.2 .
Engineering Agreement means the Engineering Agreement to be executed by Project Company and CTCI and, for the limited purpose set forth therein, Kraton Shareholder, with respect to the definitive engineering design of the Plant.
Environmental Laws means any and all federal, state and local statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other restrictions of any Governmental Authority of the Republic of China relating to the environment, or to handling, storage, emissions, discharges, releases or threatened emissions, discharges or releases of Hazardous Materials into the environment, including ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment or disposal of any Hazardous Materials.
Environmental or Safety Matter has the meaning set forth in Section 11.2 .
Engineering Letter Agreements means (i) the Letter Agreement Regarding Engineering Services dated as of June 12, 2012, as amended, by and between Kraton Shareholder and CTCI, and for the limited purpose set forth therein, FPCC Shareholder, as amended, supplemented, modified, renewed or extended from time to time by agreement of the parties thereto, and (ii) the Preliminary Letter of Agreement Relating to Preliminary Engineering, dated as of September 23, 2011, by and between FPCC Shareholder and CTCI, and, for the limited purpose set forth therein, Kraton Shareholder, as amended, supplemented, modified, renewed or extended from time to time by agreement of the parties thereto.
Equipment means all of the equipment, machinery, motors, turbines, fabricated items and facilities required to operate the Plant.
Event of Default has the meaning set forth in Section 11.5 .
Execution Date has the meaning set forth in the Preamble.
Expert has the meaning set forth in Section 5.1 of Appendix C .
Expert Matters has the meaning set forth in Section 5.2 of Appendix C .
Fair Market Value of any property, means, as of any date, the fair market value of such property, as determined in good faith by the Board, or if the Board is unable to agree on the fair market value of such property, as reflected in an appraisal conducted by an internationally recognized independent valuation consultant or appraiser of international standing reasonably satisfactory to the parties.
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FIA has the meaning set forth in Section 2.3 .
First Party has the meaning set forth in Section 4.11(b) of Appendix C .
Fiscal Year means, except for the limited purpose set forth in Section 1 of Exhibit F , the calendar year January 1 through December 31.
Force Majeure means any occurrence, whether of the kind herein enumerated or otherwise, that is not within the reasonable control of the Person claiming the right to delay performance on account of such occurrence including, to the extent that the foregoing standard is met, acts of God, acts of the public enemy, acts of a Governmental Authority, insurrections, wars or war-like action (whether actual and pending or expected), arrests or other restraints of government (civil or military), blockades, embargoes, strikes, lock-outs, labor unrest or disputes, unavailability of labor or materials, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, wash-outs, explosions, civil disturbance or disobedience, riot, sabotage, terrorism, threats of sabotage or terrorism.
Formation Date has the meaning set forth in Section 1.1(c) .
Formation Expenses has the meaning set forth in Section 2.8 .
FPCC Directors Representative means any representative appointed to the Board by FPCC Shareholder in its capacity as a Director of Project Company.
FPCC Non-Compete Entities has the meaning set forth in Section 9.1 .
FPCC Shareholder has the meaning set forth in the Preamble.
Framework Agreement means the Framework Agreement, dated July 13, 2011, by and between Kraton and FPCC Shareholder, whereby Kraton and FPCC Shareholder agreed to form and jointly own Project Company, as amended.
Funding Shareholder has the meaning set forth in Section 2.4(a) .
Governmental Authority means any foreign, federal, state or local governmental entity, authority or agency, court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof) having jurisdiction as to the matter in question.
Government Official means and includes (i) any officer or employee of a federal, regional or municipal government or any department, agency or instrumentality thereof; (ii) any officer or employee of a state-owned entity; (iii) any Person acting in an official capacity for or on behalf of a government, any department, agency of instrumentality thereof, or any state-owned entity; (iv) any officer or employee of a public international organization; (v) any candidate for a political office; or (vi) any political party or official thereof.
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Ground Lease means the Ground Lease dated as of the date hereof, by and between FPCC Shareholder and Project Company, as amended, supplemented, modified, renewed or extended from time to time by agreement of the parties thereto.
Hazardous Material s means (a) any substance, emission or material, including asbestos, now or hereafter defined as, listed as or specified in the laws of the Republic of China as a regulated substance, hazardous substance, toxic substance, pesticide, hazardous waste, hazardous material or any similar or like classification or categorization under any Environmental Law including by reason of ignitability, corrosivity, reactivity, carcinogenicity or reproductive or other toxicity of any kind, (b) any products or substances containing petroleum, asbestos or polychlorinated biphenyls or (c) any substance, emission or material determined to be hazardous or harmful; provided that Hazardous Materials shall exclude the feedstocks used to produce HSBC, including butadiene and hydrogen, as well as HSBC or any other product produced by the Plant.
HSBC means hydrogenated styrenic block copolymers and related products of the type SEBS and SEPS.
HSE Policy means the health, safety and environmental policy of Project Company included in Exhibit E to this Agreement.
ICC has the meaning set forth in Section 3.5 of Appendix C .
ICC Centre has the meaning set forth in Section 5.3(e) of Appendix C .
ICC Rules has the meaning set forth in Section 3.5 of Appendix C .
IFRS means the International Financial Reporting Standards of the International Accounting Standards Board as adopted by the Republic of China as in effect from time to time and applied by Project Company.
Indemnified Party has the meaning set forth in Section 7 of Appendix B .
Indemnifying Party has the meaning set forth in Section 7 of Appendix B .
Independent Auditor has the meaning set forth in Section 4.2 .
Intellectual Property means all (a) patents, patent applications and statutory invention registrations, (b) copyrights, including registrations and applications for registration, (c) trade secrets, know-how and confidential or proprietary information and (d) all other similar intellectual property rights of any kind throughout the world.
International Anti-Bribery Convention has the meaning set forth in Section 2.1 of Appendix D .
IRS means United States Internal Revenue Service.
Kraton has the meaning set forth in Recital A.
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Kraton Directors Representative means any representative appointed to the Board of Project Company by KP Investment in its capacity as a Director of Project Company.
Kraton Shareholder has the meaning set forth in the Preamble.
Liabilities means any and all liabilities, obligations and commitments of any nature whatsoever, whether based on common law or statute or arising under written contract or otherwise, known or unknown, fixed or contingent, real or potential, tangible or intangible, now existing or hereinafter arising.
LIBOR means the London Inter-Bank Offering Rate for a month as indicated in the Telerate page 3750 at 11:00 a.m. (London time) on the first day of the applicable period or, if commercial banks are not open for international operations in London on such day, the rate on the next day on which banks in London are open for international operations; provided that LIBOR shall be adjusted on the 31st day of each applicable period to the then-current rate as provided above.
Lien means any mortgage, lien, pledge, charge or security interest, any lien for taxes or assessments, builder, mechanic, warehouseman, materialman, contractor, workman, repairman or carrier lien or other similar liens.
Liquidation Commencement Date has the meaning set forth in Section 12.2(a) .
Losses means all suits, actions, Liabilities, legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character, including reasonable attorneys fees and expenses.
Mailiao Industrial Park means the Formosa Plastics Group Industrial Zone located in Mailiao, Yun Lin County, Republic of China.
Maintenance Agreement means the Maintenance Agreement, dated as of the date hereof, by and between Project Company and FPCC Shareholder, as the same may be amended, supplemented, modified, renewed or extended from time to time by agreement of the parties.
Managers has the meaning set forth in Section 7.2(b) .
Mandatory Expenses means the following costs and expenses of Project Company: (a) Taxes, insurance and utilities; (b) costs and expenses incurred in order to comply with Applicable Laws, ordinances, rules and regulations of Governmental and quasi-Governmental Authorities having jurisdiction over the Plant or Project Company; (c) costs and expenses incurred to satisfy obligations under existing contracts (including obligations under the Transaction Documents and with respect to any debt financing); and (d) costs and expenses to address emergencies involving an immediate danger to persons or property or required to avoid suspension of necessary services to Project Company.
MOBA means the Manual of Business Authorities of Project Company.
Monthly Business Report has the meaning set forth in Section 8.3(a) .
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Multi-Party Arbitration has the meaning set forth in Section 7.1 of Appendix C .
Net Income has the meaning set forth in Section 1 of Exhibit F .
Net Loss has the meaning set forth in Section 1 of Exhibit F .
Non-Conflicted Shareholder has the meaning set forth in Section 6.7(b) .
Non-Funding Shareholder has the meaning set forth in Section 2.4(a) .
Notice has the meaning set forth in Section 4 of Appendix B .
Notice of Dispute has the meaning set forth in Section 2.2 of Appendix C .
OFAC has the meaning set forth in Section 3.5 of Appendix D .
Offtake Agreement means the Offtake Agreement, dated as of the date hereof, by and between Project Company and Kraton Shareholder on behalf of it and its Affiliates, as the same may be amended, supplemented, modified, renewed or extended from time to time by agreement of the parties thereto.
Operating Budget has the meaning set forth in Section 8.2(c) .
Organizational Documents means, with respect to any Person at any time, such Persons certificate or articles of incorporation, by-laws, memorandum and articles of association, certificate of formation of limited liability company, limited liability company agreement and other similar organizational or constituent documents, as applicable, in effect at such time.
Other Dispute has the meaning set forth in Section 7.1 of Appendix C .
Partner has the meaning set forth in Section 1 of Exhibit F .
Partner Nonrecourse Debt Minimum Gain has the meaning set forth in Section 1 of Exhibit F .
Partnership Interest has the meaning set forth in Section 1 of Exhibit F .
Partnership Minimum Gain has the meaning set forth in Section 1 of Exhibit F .
party and parties means the signatories to this Agreement.
Person means any individual, firm, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity or organization.
Phase II expansion has the meaning set forth in Section 9.2 .
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Plant means the facility owned by Project Company that will be situated on the Plant Site for the production of HSBC and related products.
Plant Site means the portion of the Mailiao Industrial Park, described in the Ground Lease and on which the Plant will be located.
Pledge means to mortgage, pledge, encumber or create or suffer to exist any Lien.
Policies means the Code of Ethics and Business Conduct Policy attached as Exhibit E-1 , the HSE Policy attached as Exhibit E-2 , the MOBA attached as Exhibit E-3 and each other policy adopted by the Board from time to time for Project Company.
Pre-Arbitral Referee Procedure has the meaning set forth in Section 4.3 of Appendix C .
Pre-establishment Period has the meaning set forth in Section 11 of Exhibit F .
Preparatory Office has the meaning set forth in Section 1.1(a) .
Preparatory Office Bank Account has the meaning set forth in Section 1.1(a) .
Prohibited Person has the meaning set forth in Section 3.5 of Appendix D .
Project Company has the meaning set forth in the Preamble.
Project Company Indemnified Persons shall mean Project Company, the shareholders of Project Company, its respective successors, assigns, employees, agents, shareholders, members, partners, other owners thereof, officers, directors and Affiliates, and anyone else acting on behalf of Project Company.
reasonable best efforts means best efforts consistent with reasonable commercial practice and without payment or incurrence of unreasonable expense or the requirement to engage in litigation.
Reevaluation Event has the meaning set forth in Section 1 of Exhibit F .
Registered Capital means the registered capital of Project Company, as it may be increased from time to time.
Regulatory Allocations has the meaning set forth in Section 5(a) of Exhibit F .
Second Party has the meaning set forth in Section 4.11(b) of Appendix C .
Secondee means any Person seconded to Project Company by Kraton Shareholder or FPCC Shareholder in accordance with the Secondment Agreement.
Secondment Agreement means the Secondment Agreement, dated as of the date hereof, 2012, by and between Project Company, FPCC Shareholder and Kraton Shareholder, as amended, supplemented, modified, renewed or extended from time to time by agreement of the parties.
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Senior Representative shall mean, with respect to FPCC Shareholder, a manager of FPCC Shareholder and, with respect to Kraton Shareholder, an officer of a parent entity of Kraton Shareholder, in each case who is not a Directors Representative or who has decision-making authority with respect to Project Company.
Shareholder Financing Loan has the meaning set forth in Section 2.5(b) .
Shareholder Funding Default Loan has the meaning set forth in Section 2.4(a) .
Shareholder Registered Capital Loan has the meaning set forth in Section 2.5(a) .
Shareholders has the meaning set forth in the Preamble.
Subsidiary of any Person means an Affiliate of such Person, all of the equity interests of which are owned, directly or indirectly, by such Person.
Tax Matters Partner has the meaning set forth in Section 9 of Exhibit F .
Tax Partnership has the meaning set forth in Section 11 of Exhibit F .
Taxes means all taxes or similar charges, fees, levies or other assessments imposed by any Governmental Authority, including income, gross receipts, excise, property, sales, use, transfer, payroll, license, ad valorem, value added, withholding, social security, national insurance (or other similar contributions or payments), franchise, severance and stamp taxes (including any interest, fines, penalties or additions attributable to, or imposed on or with respect to, any such taxes, charges, fees, levies or other assessments).
Technology License means the Technology License Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company, as the same may be amended, supplemented, modified, renewed or extended from time to time by agreement of the parties thereto.
Third Party means any Person other than Kraton Shareholder, Project Company or FPCC Shareholder or an Affiliate of any of them.
Third Party Claim has the meaning set forth in Section 7(b) of Appendix B .
Third Party Loans has the meaning set forth in Section 2.1 .
Transaction Documents means each agreement executed and delivered in connection with the transactions contemplated by this Agreement, including the agreements listed in Appendix A-1 to this Agreement.
Transfer means to sell, assign or otherwise in any manner dispose of, whether by act, deed, merger, consolidation, amalgamation, conversion or otherwise.
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Treasury Regulations has the meaning set forth in Section 1 of Exhibit F .
United States or U.S. means the United States of America.
USBC means unsaturated styrenic block copolymers and related products of the type SBS, SIBS and SIS, but excluding those USBCs with styrene content above 60% in weight.
USBC Proposing Party has the meaning set forth in Section 9.3 .
U.S. Anti-Bribery Laws has the meaning set forth in Section 2.1 of Appendix D .
U.S. GAAP means United States generally accepted accounting principles, as in effect from time to time and applied by Kraton or Project Company, as the context so requires.
U.S. Tax Advances has the meaning set forth in Section 7 of Exhibit F .
Wholly Owned Affiliate means, as to any Person, an Affiliate of such Person, all of the equity interests of which are owned, directly or indirectly, by another Wholly Owned Affiliate of such Person or by the ultimate parent entity thereof.
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APPENDIX A-1
Transaction Documents
1. | Confidential Disclosure Agreement, dated as of the date hereof, by and among Project Company, Kraton Shareholder and FPCC Shareholder |
2. | Shareholder Agreement, dated as of the date hereof, by and between Kraton Shareholder and FPCC Shareholder |
3. | Project Support Services Agreement, dated as of the date hereof, by and among Project Company, FPCC Shareholder and Kraton Shareholder |
4. | Maintenance Agreement, dated as of the date hereof, by and between FPCC Shareholder and Project Company |
5. | FPCC Services Agreement, dated as of the date hereof, by and between FPCC Shareholder and Project Company |
6. | Process and Product Technology License Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company |
7. | Basic Design Engineering Package Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company |
8. | Private Label Trademark License Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company |
9. | Technical Services Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company |
10. | Offtake Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company |
11. | Butadiene Feedstock Supply Agreement, dated as of the date hereof, by and between FPCC Shareholder and Project Company |
12. | Hydrogen Supply Agreement, dated as of the date hereof, by and between FPCC Shareholder and Project Company |
13. | Isoprene Supply Agreement, dated as of the date hereof, by and between FPCC Shareholder and Project Company |
14. | Ground Lease, dated as of the date hereof, by and between FPCC Shareholder and Project Company |
15. | Sublease of the Office Lease, dated as of the date hereof, between Kraton Shareholder and Project Company |
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16. | Secondment Agreement, dated as of the date hereof, by and among Kraton Shareholder, FPCC Shareholder and Project Company |
17. | Performance Guaranty Agreement, dated as of the date hereof, by and between Kraton Shareholder and Project Company |
18. | Guaranty Agreement, dated as of the date hereof, by and among Kraton Polymers LLC, Project Company and FPCC Shareholder |
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APPENDIX B
General Provisions
Section 1. Agreement Interpretation . In construing this Agreement: (a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Agreement and not as an aid to construction and shall not be interpreted to limit or otherwise affect the provisions of this Agreement or the rights and other legal relations of the parties hereto; (b) no consideration shall be given to the fact or presumption that either party had a greater or lesser hand in drafting this Agreement; (c) examples shall not be construed to limit, expressly or by implication, the matter they illustrate; (d) the word includes and its syntactic variants mean, unless otherwise specified, includes, but is not limited to and corresponding syntactic variant expressions; (e) words such as herein, hereby, hereafter, hereof, hereto and hereunder refer to this Agreement as a whole and not to any particular article, section or provision of this Agreement; (f) whenever the context requires, the plural shall be deemed to include the singular, and vice versa; (g) each gender shall be deemed to include the other gender, when such construction is appropriate; (h) all of the Appendices, Exhibits and Schedules referred to in this Agreement are part of this Agreement and each Appendix, Exhibit and Schedule is hereby incorporated into the body of the Agreement as if set forth in full therein; (i) references to a Person are also to its permitted successors and permitted assigns; (j) all references in this Agreement to Appendices, Exhibits, Schedules, Articles and Sections refer to the corresponding Appendices, Exhibits, Schedules, Articles and Sections of this Agreement unless expressly provided otherwise; (k) unless expressly stated otherwise, the word or is not exclusive; (l) all references to US$ or Dollars means United States Dollars, and all references to NT$ means New Taiwan Dollars; and (m) unless otherwise expressly provided herein, any agreement, instrument or Applicable Law defined or referred to herein means such agreement, instrument or Applicable Law as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of Applicable Laws) by succession of comparable successor Applicable Laws and reference to all attachments thereto and instruments incorporated therein.
Section 2. Negotiation and Preparation Costs . Each party shall bear the costs and expenses incurred by it in connection with the negotiation, preparation and execution of this Agreement and other documents referred to herein.
Section 3. Representations and Warranties . Each party hereby represents and warrants that each of the following statements is true, accurate and not misleading as of the date of execution and the date of ratification of this Agreement:
(a) Organization and Authority . It has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, with all necessary power and authority to enter into, deliver and perform all its obligations under this Agreement.
(b) Due Authorization; Enforceability . This Agreement has been duly authorized and constitutes the legal, valid, and binding obligations of it, enforceable against it in accordance with its terms. It has the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and to perform its obligations under this Agreement.
Appendix B-1
(c) No Conflict . Neither the execution and delivery of this Agreement nor the consummation or performance of any of the transactions contemplated by this Agreement will, directly or indirectly (with or without notice or lapse of time) (1) contravene, conflict with, or result in a violation of (i) any provision of its Organizational Documents or (ii) any resolutions adopted by its board of directors or its stockholders or (2) contravene, conflict with, or result in a violation of, or give any Governmental Authority or other Person the right to challenge any of the transactions contemplated by this Agreement or to exercise any remedy or obtain any relief under any Applicable Law or any order to which it or its Affiliates may be subject.
(d) Consents and Notices . It is not required to give any notice to or obtain any approval, consent, ratification, waiver or other authorization of any Person (including any Authorization) in connection with the execution and delivery of this Agreement or the consummation or performance of any of the transactions contemplated by this Agreement.
Section 4. Notices . Wherever provision is made for the giving or issuance of any notice, instruction, consent, approval, certificate or determination by any Person (each, a Notice ), unless otherwise specified, such communication shall be in writing and shall not be unreasonably withheld or delayed. All Notices shall be given to a party at the physical address or facsimile number specified on Schedule 1 to this Agreement or as such party shall at any time otherwise specify by like notice to each other party to this Agreement. Each such Notice shall be effective (a) if given by facsimile, at the time such appropriate confirmation of receipt is received by the sender (or, if such time is not during regular business hours of a Business Day, at the beginning of the next such Business Day), and (b) if given by mail or courier, upon receipt or refusal of service at the address specified for each party on Schedule 1 to this Agreement.
Section 5. Specific Performance . The parties acknowledge and agree that in the event of an actual or threatened breach of the covenants and agreements of the parties set forth in this Agreement, or due to the length of time required to resolve a dispute pursuant to the dispute resolution procedures applicable to this Agreement, monetary damages may be inadequate to fully remedy the actual or threatened injury. Therefore, without limiting any other remedy available under equity, at law, under this Agreement or pursuant to the dispute resolution procedures applicable to this Agreement, all parties expressly agree that an injunction, restraining order, specific performance and other forms of equitable relief shall be available to the non-breaching party, and the breaching party shall not claim as a defense thereto that there is an adequate remedy at law or through the dispute resolution process. The party seeking an injunction, retraining order, specific performance or other equitable relief shall not be required to post a bond unless required by Applicable Law.
Section 6. No Consequential or Special Damages . Except as otherwise expressly provided in this Agreement, no party nor any of its Affiliates shall be liable under this Agreement or under any other document entered into or otherwise for lost profits or exemplary, special, punitive, indirect, remote, speculative or consequential damages (including lost profits, opportunity costs or damages based upon multiples of earnings or other financial or operational measures), whether in tort (including negligence or gross negligence), strict liability, by contract or statute, and whether foreseeable or unforeseeable.
Appendix B-2
Section 7. Indemnification Procedures . All claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) For purposes of this Section 7 , the term Indemnifying Party when used in connection with particular Losses shall mean the party or parties having an obligation to indemnify another party or parties with respect to such Losses pursuant to this Section 7 , and the term Indemnified Party when used in connection with particular Losses shall mean the party or parties having the right to be indemnified with respect to such Losses by another party or parties pursuant to this Agreement.
(b) To make a claim for indemnification hereunder, an Indemnified Party shall notify the Indemnifying Party of its claim, including the specific details of and specific basis under this Agreement for its claim (the Claim Notice ). In the event that the claim for indemnification is based upon a claim by a Third Party against the Indemnified Party (a Third Party Claim ), the Indemnified Party shall provide its Claim Notice promptly after the Indemnified Party has actual knowledge of the Third Party Claim and shall include reasonable details regarding the Third Party Claim; provided that the failure of any Indemnified Party to give notice of a Third Party Claim as provided in this Section 7 (b) shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure results in insufficient time being available to permit the Indemnifying Party to effectively defend against the Third Party Claim or otherwise prejudices the Indemnifying Partys ability to defend against the Third Party Claim.
(c) In the case of a claim for indemnification based upon a Third Party Claim, the Indemnifying Party shall have 30 days from its receipt of the Claim Notice to notify the Indemnified Party whether it admits or denies its liability to defend the Indemnified Party against such Third Party Claim at the sole cost and expense of the Indemnifying Party. The Indemnified Party is authorized, prior to and during such 30-day period, to file any motion, answer or other pleading that is reasonably necessary to protect its interests or those of the Indemnifying Party and that is not prejudicial to the Indemnifying Party; provided that if an Indemnified Party takes any such action that is materially prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party shall be relieved of its obligations hereunder with respect to such Third Party Claim to the extent the Indemnifying Party was so prejudiced and harmed.
(d) If the Indemnifying Party admits its liability, it shall have the right and obligation to diligently defend, at its sole cost and expense, the Third Party Claim. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof subject to the remainder of this Section 7 (d) . If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate in contesting any Third Party Claim which the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 7 (d) , and shall bear its own costs with respect thereto. Notwithstanding the foregoing, without the express written consent of the Indemnified Party, the Indemnifying Party may not agree to any compromise or settlement which would require any action other than the payment of money that shall be fully paid by the Indemnifying Party.
Appendix B-3
(e) If the Indemnifying Party does not admit its liability or admits its liability but fails to diligently prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to diligently defend against the Third Party Claim at the sole cost and expense of the Indemnifying Party (if the Indemnifying Party is entitled to indemnification hereunder), with counsel of the Indemnified Partys choosing; provided that the Indemnified Party shall not settle a Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 7 and if such dispute is resolved (by agreement or through the dispute resolution procedures in this Agreement) in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Partys defense pursuant to this Section 7 (e) or of the Indemnifying Partys participation therein at the Indemnified Partys request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such litigation.
(f) In the case of a claim for indemnification not based upon a Third Party Claim, the Indemnifying Party shall have 60 days from its receipt of the Claim Notice to (i) cure the Losses that are the subject of such Claim Notice to the reasonable satisfaction of the Indemnified Party, (ii) admit its liability for such Loss or (iii) dispute the claim for such Losses.
(g) The amount of any Losses for which an Indemnified Party is entitled to indemnification under this Agreement shall be reduced by any corresponding net tax benefit or insurance proceeds realized by such Indemnified Party or its Affiliates from Third Party insurers with respect to such Losses (net of any collection costs, and excluding the proceeds of any insurance policy underwritten by the Indemnified Party or its Affiliates). Each Indemnified Party agrees that it shall pursue in good faith all claims under any applicable insurance policies and against other Persons (including its Affiliates) that may be responsible for any Losses. The Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use commercially reasonable efforts to avoid any costs or expenses associated with such claim and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
Section 8. Complete Agreement; Disclaimer . This Agreement together with each other Transaction Document to which the parties are signatory, taken together, constitute the entire agreement of the parties relating to the subject matter of this Agreement and supersede all prior contracts, agreements or understandings with respect to the subject matter hereof and thereof, both oral or written. EACH PARTY AGREES THAT (A) THE OTHER PARTY (AND THEIR AGENTS AND REPRESENTATIVES) HAS NOT MADE ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT TO OR WITH SUCH PARTY RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF OTHER THAN AS REDUCED IN WRITING IN THIS AGREEMENT OR IN ANOTHER EXECUTED AND DELIVERED TRANSACTION DOCUMENT, AND (B) SUCH PARTY
Appendix B-4
HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT TO OR WITH THE OTHER PARTY RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF, OTHER THAN THOSE REDUCED IN WRITING IN THIS AGREEMENT OR IN ANOTHER EXECUTED AND DELIVERED TRANSACTION DOCUMENT.
Section 9. Public Announcements . No party shall, except as required by Applicable Law or the rules of any recognized national stock exchange, cause any public announcement to be made regarding this Agreement. In the event that a party shall be required to cause such a public announcement to be made pursuant to any Applicable Law or the rules of any recognized national stock exchange, it shall use commercially reasonable efforts to provide the other party at least two Business Days prior written notice of such announcement.
Section 10. Time is of the Essence; Performance Extended to Next Business Day . Time is of the essence in each and every provision of this Agreement. Notwithstanding any deadline for payment, performance, notice or election under this Agreement, if such deadline falls on a date that is not a Business Day, then the deadline for such payment, performance, notice or election will be extended to the next succeeding Business Day.
Section 11. Assignment . This Agreement shall bind and enure to the benefit of the parties, their respective successors and permitted assigns. Except as expressly otherwise provided in this Agreement, no party may assign or transfer its interest and/or obligations herein without the prior written consent of the other party, which may be withheld in such partys sole discretion.
Section 12. Amendment . This Agreement may not be amended, modified or altered except by an instrument in writing signed on behalf of each party.
Section 13. Severability . In the event that any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the parties shall negotiate an equitable adjustment to the provisions of this Agreement with a view to effecting, to the extent possible, the original purpose and intent of this Agreement, and the validity and enforceability of the remaining provisions shall not be affected thereby.
Section 14. Waiver; Cumulative Rights and Remedies . Any of the terms, covenants, representations, warranties or conditions hereof may be waived only by a written instrument executed by or on behalf of the party waiving compliance. The failure of a party at any time to strictly enforce any provision of this Agreement shall in no way affect its right thereafter to require performance thereof, nor shall the waiver of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of any such provision or as a waiver of the provision itself. Unless otherwise specified herein, the rights and remedies provided in this Agreement are cumulative and the exercise of any one right or remedy by any party shall not preclude or waive its right to exercise any or all other rights or remedies.
Section 15. Interest Calculation . Except as otherwise expressly provided in this Agreement, interest shall accrue on any unpaid and outstanding amount from the time such amount is due and payable through the date upon which such amount, together with accrued interest thereon, is paid in full. Interest shall accrue at a per annum rate equal to the Default Rate, compounded quarterly.
Appendix B-5
Section 16. Further Assurances . From time to time, each party agrees to promptly execute and deliver such additional documents, and will provide such additional information and assistance, as any party may reasonably require to effect the terms of this Agreement and to accomplish the Project.
Section 17. Counterparts . This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement to which no party shall be bound until all parties have executed a counterpart. Signatures transmitted by facsimile or as emailed PDF copies shall be binding as originals so long as the Agreement is transmitted in its entirety, and each party hereby waives any defenses to the enforcement of the terms of this Agreement sent by facsimile or emailed PDF based upon the manner of transmission or form of signature (electronic, facsimile or ink original).
Appendix B-6
APPENDIX C
Dispute Resolution Procedures
Section 1. [Reserved]
Section 2 . Generally; Notice of Dispute and Response .
2.1 The parties shall resolve all disputes, controversies and claims arising out of, relating to or in connection with this Agreement or the operations carried out under this Agreement, including the construction, existence, validity, enforceability, enforcement, breach and termination of this Agreement (a Dispute ), exclusively in accordance with this Appendix C .
2.2 Either party may notify the other party in writing of any Dispute (a Notice of Dispute ). Such Notice of Dispute shall (a) specify the nature of such Dispute, (b) include a statement of such partys position with regard to such Dispute and (c) identify whether such Dispute is an Expert Matter.
Section 3. Settlement of Disputes by Negotiation .
3.1 Within five Business Days after the receipt by a party of a Notice of Dispute, the parties shall schedule a meeting to be held at a place as the parties may mutually agree. Such meeting shall be held within 10 Business Days after the receipt by a party of a Notice of Dispute, and may be held by video conference or telephone conference. The meeting shall be attended by senior management level personnel of each of the parties who have not previously been directly engaged in asserting or responding to such Dispute. Such persons shall attempt in good faith and a commercially reasonable manner to negotiate a resolution of such Dispute, which negotiations may entail the involvement of, and meetings attended by, additional senior management level personnel senior to such persons.
3.2 If such senior management level personnel shall not have negotiated a resolution to such Dispute within 60 days after such Notice of Dispute was delivered, then the Chief Executive Officer, or a senior executive officer designated by the Chief Executive Officer (or equivalent) with full decision-making authority with respect to such Dispute and the dispute resolution process, of each ultimate parent company of each of the parties shall meet at a mutually agreed location, and such Persons shall attempt in good faith and a commercially reasonable manner to negotiate a resolution of such Dispute before these procedures may be deemed to have been exhausted.
3.3 If such Dispute is resolved pursuant to Section 3.1 or 3.2 of this Appendix C , one or more parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Each party shall have a commercially reasonable time in which to take such actions.
3.4 All negotiations pursuant to Sections 3.1 through 3.3 of this Appendix C , including any Notice of Dispute, shall be confidential and shall be treated as compromise and settlement negotiations, and no oral or documentary representations made by either party during such negotiations shall be admissible for any purpose in any subsequent proceedings.
Appendix C-1
3.5 If any Dispute is not resolved following negotiation pursuant to Sections 3.1 through 3.3 of this Appendix C , the parties shall submit the matter to settlement proceedings under the ADR Rules of the International Chamber of Commerce (the ICC ) in force as from 1 July 2001 (the ICC Rules ) or, if such ICC Rules are no longer in force, such rules of the ICC that replaced the ICC Rules, or if no such rules exist, as agreed by the parties.
Section 4. Resolution of Disputes by Arbitration .
4.1 ICC Rules Apply . Except in the case of an Expert Matter or as provided in Section 4.2 of this Appendix C , if any Dispute has not been settled pursuant to Section 3 of this Appendix C within 60 days following the filing by a party of a Request for ADR under the ICC Rules (or within such other period as the parties may agree in writing), such Dispute shall be finally settled under the ICC Rules by three arbitrators appointed in accordance with the ICC Rules (an Arbitral Tribunal ), which arbitration shall be administered by the ICC. Each arbitrator shall be fluent in the English language. To the extent that the ICC Rules are in conflict with any provision of this Section 4 , the provisions of this Section 4 shall prevail.
4.2 Disputes Before Sole Arbitrator . A Dispute shall be referred to a sole arbitrator if (a) the amount in dispute (representing the aggregate of the claim, counterclaim and any set-off defense) does not exceed US$5,000,000, (b) the parties so agree or (c) it is a case of exceptional urgency. In such case, the award shall be made within six months after the date on which the sole arbitrator is appointed; provided that such time limit may be extended if (i) the parties agree or (ii) the sole arbitrator or the International Court of Arbitration of the ICC determine that the interest of justice so requires. The sole arbitrator shall use his best efforts to issue the award within such time period. Failure to adhere to such time limit shall not be a basis for challenging the award.
4.3 Pre-Arbitral Referee Procedure . Each party shall have the right to have recourse to, and shall be bound by, the pre-arbitral referee procedure of the ICC in accordance with its 1990 Rules for a Pre-Arbitral Referee Procedure (the Pre-Arbitral Referee Procedure ).
4.4 Place of Arbitration . The place of arbitration shall be Singapore or at such other place as the parties shall mutually agree in writing.
4.5 Language . The arbitration proceedings shall be conducted in the English language (provided that any person participating in the arbitration may speak through a translator) and all written submissions, awards and the reasons supporting them shall be in English. Any materials submitted in a language other than English shall be accompanied by a certified English translation.
4.6 Performance Not Suspended . Subject to any provision of this Agreement to the contrary and any provisional order to the contrary, each party shall continue to perform its obligations under this Agreement during the continuation of the resolution of any Dispute pursuant to this Section 4 .
Appendix C-2
4.7 Costs of Arbitration . Each party shall, in the first instance, bear its own costs and fees of, and occasioned by, the arbitration (including attorneys fees) and shall share the advance on costs and fees in such proportion as shall be provisionally determined by the ICC. Thereafter, the parties costs and the costs of the arbitration (including attorneys fees and other arbitration costs of a party) shall be borne in the manner determined by the relevant Arbitral Tribunal. In the absence of any such determination by such Arbitral Tribunal, the situation as in the first instance shall continue.
4.8 Waiver . Resolution of a Dispute by arbitration is final, and each party hereby waives any right of appeal to any court or tribunal of competent jurisdiction to the fullest extent permitted by the Applicable Law; provided that all parties retain whatever rights they may have to challenge the enforcement of any decision or award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the applicable articles of the ROC Code of Civil Procedure and arbitration law of the Republic of China.
4.9 Authority of Arbitral Tribunals . Each Arbitral Tribunal shall have full authority to award any remedy or relief proposed by any party, including damages, set-offs and equitable relief, such as a declaratory judgment, specific performance of any obligation created under this Agreement, the issuance of an injunction, requiring the furnishing of security or guarantees and requiring the preservation of any thing or right under the control of a party, and awarding damages for the failure of any party to respect an Arbitral Tribunals orders to that effect; provided that each Arbitral Tribunal is prohibited from awarding punitive or exemplary damages.
4.10 The Award . The award shall be in writing and shall state the reasons supporting the award. The arbitrators shall make the award and any other decisions or rulings strictly according to the Applicable Law and not ex aequo et bono or as amiable compositeur, and shall not decide such Dispute by reference to any other doctrine or practice that would permit them to avoid this Agreement or the Applicable Law of this Appendix C .
4.11 Monetary Awards .
(a) Any monetary award shall be made in Dollars and shall be payable free of any Tax, withholding, deduction or offset. If a party is required to withhold or otherwise account for any such Tax, withholding, deduction or offset, such party shall:
(i) pay and bear such Tax, withholding, deduction or offset; and
(ii) ensure that the other party receives an amount equal to the amount of such award without deduction for any such Tax, withholding, deduction or offset.
(b) If a party (the First Party ) makes a Tax deduction in respect of a monetary award payment to the other party (the Second Party ) and a corresponding Tax payment to any taxing authority or Governmental Authority and the Second Party has obtained a refund of such Tax payment, or used such Tax payment as a credit against its Tax liabilities, then the Second Party shall reimburse the First Party the amount of such Tax payment as will leave the Second Party (after such reimbursement) in no better or worse position than it would have been in had no Tax payment been required.
Appendix C-3
(c) An Arbitral Tribunal shall include pre-award and post-award interest (including compound interest) at commercial rates from the date of any breach until the date such award is paid in full, including interest due. Any costs, expenses and fees incident to enforcing any award (including attorneys fees) shall, to the maximum extent permitted by the Applicable Law, be charged against the party against whom such enforcement is sought.
4.12 Privileges . Legal professional privilege, including privileges protecting attorney-client communications and attorney work product of each party from compelled disclosure or use in evidence, as recognized by the law governing each partys relationship with its counsel, shall apply to and be binding in any arbitration proceeding conducted under this Section 4 .
4.13 Confidentiality . Each party shall ensure that it and its shareholders and Affiliates and their respective Affiliates, officers, directors, employees, counsel, consultants and expert witnesses of any thereof and the Arbitral Tribunal, shall maintain as confidential the fact of any proceedings described in this Appendix C , including arbitration proceedings, the arbitral award, the Pre-Arbitral Referee Procedure, any settlement agreement or order, filings or submissions exchanged or produced during any such proceedings and briefs or other documents prepared in connection with such proceedings, except:
(i) to the extent necessary to enforce this Section 4 or any arbitral award;
(ii) to enforce other rights of the parties hereunder;
(iii) pursuant to an order of or a subpoena issued by a court of competent jurisdiction;
(iv) as required by Applicable Law;
(v) as required by the rules of any stock exchange on which the shares of any party or any shareholder or Affiliate thereof (or any Affiliate of any of the foregoing) are listed or are in the process of being listed; or
(vi) pursuant to an order in connection with the Pre-Arbitral Referee Procedures with proper notice to the parties and other relevant Persons and tribunals.
4.14 Submission to Jurisdiction; Interim and Other Relief . Each party hereby submits to the exclusive jurisdiction of the English (the Country of Jurisdiction ) courts in any action, suit or proceeding with respect to the enforcement of the agreement to arbitrate in this Section 4 and the non-exclusive jurisdiction of such courts with respect to the enforcement of any award thereunder. On or prior to the execution and delivery of this Appendix C , each party shall have (a) appointed an agent to accept, on its behalf, service of process in the Country of Jurisdiction and (b) received evidence of such agents acceptance of such appointment for the term of this Agreement. Each party agrees not to plead or claim in any Country of Jurisdiction
Appendix C-4
court that any such action or proceeding has been brought in an inconvenient forum. Each party agrees that the Country of Jurisdiction courts shall have the power to provide any necessary interim relief prior to the formation of an Arbitral Tribunal. In addition, any party to the arbitration may apply to any court of competent jurisdiction for:
(i) a provisional or conservatory order, including a preliminary injunction, in aid of the arbitration proceeding before the appointment of the arbitrators is completed; and
(ii) an order of enforcement of provisional remedies granted by an Arbitral Tribunal,
and an application for such an order shall not be deemed a violation or waiver of this Agreement. The parties waive, to the fullest extent permitted by Applicable Laws, any other right to apply to any court of competent jurisdiction for provisional remedies, whether under Article 23 of the ICC Rules (or any successor rule) or otherwise.
Section 5. Resolution of Disputes by an Expert .
5.1 Use of an Expert . Whenever a Dispute arises that involves an Expert Matter, such Dispute shall be exclusively resolved by an expert appointed as described in this Section 5 (an Expert ) in accordance with the procedures set forth in this Section 5 .
5.2 Expert Matters . The following matters ( Expert Matters ) shall be determined by an Expert:
(a) the failure of the parties to agree on a replacement index or similar reference;
(b) the interpretation of test data and the results thereof;
(c) the causation of Equipment failure; and
(d) such other matters as the parties may agree;
provided that Expert Matters shall not include a determination of the consequences of any of the foregoing under the terms of this Agreement.
5.3 Appointment of an Expert .
(a) | An Expert: |
(i) may be a Person;
(ii) shall be generally recognized as an expert in a field of expertise relevant to such Dispute that is the subject of the determination;
(iii) shall not be a current or former employee or agent of either party or any of its shareholders or Affiliates or any of their respective Affiliates; and
Appendix C-5
(iv) shall not have any conflict of interest.
(b) If a Notice of Dispute indicates that such Dispute involves an Expert Matter, the party receiving such Notice of Dispute shall, within 30 days after receipt of such Notice of Dispute, agree or deny that such Dispute is an Expert Matter. If a Notice of Dispute does not indicate that it involves an Expert Matter, but the party receiving such Notice of Dispute believes that such Dispute involves an Expert Matter and wants to have it resolved by an Expert pursuant to this Section 5 , such party shall, within 30 days after receipt of the Notice of Dispute, send a notice to the other party stating that it believes that such Dispute involves an Expert Matter and wants to have it resolved by an Expert. Within 14 days after receipt by the other party of such notice, such other party shall agree or deny in writing that such Dispute is an Expert Matter.
(c) If the parties cannot agree that a Dispute is an Expert Matter, an Arbitral Tribunal shall determine whether such Dispute is an Expert Matter in accordance with the procedures set forth in Section 4 of this Appendix C . If such Arbitral Tribunal determines that such Dispute:
(i) is an Expert Matter, such Dispute shall be resolved pursuant to this Section 5 ; or
(ii) is not an Expert Matter, such Dispute shall be resolved pursuant to arbitration in accordance with Section 4 of this Appendix C .
(d) The party that does not prevail in this determination of whether such Dispute is an Expert Matter shall bear all of the costs of such arbitration, the arbitrators fees and the parties attorneys fees through the date of that determination by such Arbitral Tribunal.
(e) For purposes of selecting an Expert, each party shall create a list of up to three proposed Experts, including the credentials of each nominee, and provide a copy thereof to the other party within 30 days after either (i) the parties agreement that such Dispute is an Expert Matter or (ii) the determination of an Arbitral Tribunal that such Dispute is an Expert Matter. If the parties are unable to select a mutually agreeable Expert from among the proposed Experts within 10 Business Days after the exchange of lists, either party may request the ICC International Centre for Expertise (the ICC Centre ) to make the selection of the Expert in accordance with the provisions for appointment of experts under the ICCs Rules for Expertise. The ICC Centre shall make the selection as promptly as possible and may take such independent advice as it deems fit.
5.4 Acceptance of the Appointment . Upon a Person being agreed or selected as aforesaid to function as an Expert, the parties shall forthwith notify such Person in writing of such selection and the determination being sought, and shall request, inter alia, a covenant that such Expert will not during the term of the appointment accept any duty or acquire or agree to acquire any interest that materially conflicts with or might materially conflict with such Experts function under such appointment. The parties shall request the selected Person to confirm, within 10 Business Days, acceptance of the appointment as Expert on the terms proposed and to disclose any existing interest or duty that conflicts or may conflict with such Persons function as Expert under such appointment.
Appendix C-6
5.5 Appointment in Default . If the selected Person shall either be unwilling or unable to accept such appointment as Expert on the terms proposed or shall not have confirmed acceptance of such appointment within the 10-Business Day period specified in Section 5.4 of this Appendix C , then, unless the parties are able to agree within 15 Business Days after receiving notification thereof upon (a) different terms with such Person from those previously proposed or (b) the selection of a different Expert, then the matter shall be referred to the ICC Centre in accordance with Section 5.3(e) of this Appendix C , which shall be requested to make an appointment or (as the case may be) a further appointment and the process shall be repeated until a person is found who accepts the appointment as Expert.
5.6 Confidentiality . It shall be a requirement of each Experts appointment that such Expert shall enter into a confidentiality undertaking with the parties governing the matter in dispute.
5.7 Procedure .
(a) After consulting with the parties, an Expert shall establish the procedures to be applied, including the timing and number of written submissions, the timing and nature of any oral hearings, and the circumstances governing any presentation of evidence or witnesses; provided that there shall be no ex parte communications or proceedings.
(b) In making any determination, an Expert shall consider the information provided by the parties and shall conduct any further reasonable investigations as are necessary and appropriate in light of the surrounding facts and circumstances. If an Expert conducts any such investigation, it shall notify each party thereof and each party shall have a reasonable opportunity to address such investigation. An Expert may, at any time prior to making a determination, request clarification or further information from the parties.
(c) An Expert shall be entitled to obtain such independent professional, secretarial and/or technical advice and assistance as may be reasonably required.
(d) The Expert determination process, both written and oral, shall be conducted in the English language.
5.8 Time for Rendering an Expert Determination .
(a) An Expert shall render a determination within 180 days following its acceptance of appointment pursuant to Section 5.4 or 5.5 of this Appendix C . Such period of 180 days may be extended by agreement of the parties, which agreement shall not be unreasonably withheld.
Appendix C-7
(b) If an Expert does not render a determination within the relevant time period specified in Section 5.8(a) of this Appendix C , then:
(i) the parties may agree to extend such deadline; or
(ii) if the parties cannot agree on an extension, another Expert shall be appointed pursuant to the procedure described in this Section 5 and, on acceptance of such appointment by the new Expert, the appointment of the original Expert shall cease; provided that if the previous Expert shall have rendered a decision prior to the new Experts entering into a contract of appointment, then (A) such decision of such previous Expert shall (subject always to Section 5.9 of this Appendix C ) be binding upon the parties and (B) the parties shall withdraw instructions (if any) previously extended to the new Expert.
5.9 Final and Binding Determination . An Experts determination shall be in writing and shall be final and binding on the parties and shall not be subject to challenge except in the event of:
(i) fraud;
(ii) failure by such Expert to disclose any relevant conflicting interest or duty;
(iii) breach by such Expert of the covenant specified in Section 5.4 of this Appendix C ;
(iv) the challenging party being denied due process;
(v) the selection of such Expert or the procedure followed by such Expert was not in accordance with this Section 5 ; or
(vi) the recognition or enforcement of such determination would be contrary to the public policy of the Country of Jurisdiction.
5.10 Costs of an Expert Determination . Each party shall bear its own costs and expenses with respect to any Expert determination. The costs and expenses of an Expert, including an Experts secretarial and administrative costs and expenses, any independent advisors to such Expert retained by such Expert in connection with a determination and any costs of such Experts appointment if such Expert is appointed by the ICC Centre, shall be borne equally by each party.
5.11 General . An Expert shall not be deemed to be an arbitrator or mediator but shall render its determination as an expert.
5.12 Failure to Comply with an Expert Determination . Each party shall comply with an Experts determination. If a party fails to comply with such determination, the other party may initiate arbitral proceedings pursuant to Section 4 of this Appendix C ; provided that the arbitral proceedings shall be limited to reviewing the Experts determination for the considerations set forth in Section 5.9 of this Appendix C . The determination of the Arbitral Tribunal shall be an arbitral award for all purposes, including enforcement.
Appendix C-8
Section 6. Consolidation of Disputes Under this Agreement .
6.1 If, with regard to two or more Disputes arising out of or in connection with this Agreement, (a) the subject matters of such Disputes involve common questions of law or fact or (b) the independent resolution of each such Dispute could result in conflicting awards or obligations, such Disputes may be consolidated in a single proceeding in accordance with the ICC Rules. If such arbitrations are consolidated and more than one Arbitral Tribunal has already been established, the first Arbitral Tribunal so established shall serve as the Arbitral Tribunal for the consolidated arbitration.
6.2 Within 30 days following any final decision by such Arbitral Tribunal that such proceedings should be consolidated, each party shall withdraw or move to dismiss any proceeding to which it is a party that will be resolved in such consolidated arbitration.
6.3 Notwithstanding anything in this Section 6 to the contrary, no arbitration proceeding may be consolidated (or dismissed on the basis of this Section 6 ) after evidentiary hearings in such proceeding have commenced.
Section 7. Multi-Party Arbitration .
7.1 Subject to Section 7.3 of this Appendix C , Project Company may bring in a single consolidated arbitration, or request the consolidation of any pending arbitration proceedings, in accordance with the ICC Rules, to resolve any dispute, claim or controversy between Project Company and any party under any other Transaction Document (each such dispute, an Other Dispute ) with any Dispute referred, or to be referred, to arbitration under Section 4 of this Appendix C (each consolidated arbitration, a Multi-Party Arbitration ), if (a) the subject matter of such Dispute and Other Dispute involve common questions of law and fact or (b) the independent resolution of such Dispute and Other Dispute could result in conflicting awards or obligations. If such arbitrations are consolidated and more than one (1) arbitral tribunal has been established:
(i) the first arbitral tribunal so established shall serve as the arbitral tribunal for the Multi-Party Arbitration; and
(ii) the other arbitral tribunal shall be divested of its authority in respect of such disputes.
7.2 Any Multi-Party Arbitration conducted pursuant to the terms of this Appendix C shall be conducted pursuant to the terms and conditions of Section 4 of this Appendix C mutatis mutandis to each dispute to be resolved in such Multi-Party Arbitration.
7.3 Within 30 days following any final decision by such Arbitral Tribunal that such proceedings should be consolidated, each party shall withdraw or move to dismiss any proceeding to which it is a party that will be resolved in the Multi-Party Arbitration; provided that Owner shall not be required to withdraw or dismiss any proceeding or submit any Dispute for resolution unless all parties to such Multi-Party Arbitration agree that Section 7.1 of this Appendix C shall apply thereto.
Appendix C-9
7.4 Notwithstanding anything in this Section 7 to the contrary, no arbitration proceeding may be consolidated (or dismissed on the basis of this Section 7 ) after evidentiary hearings in such proceeding have commenced.
Section 8. Survival . This Appendix C shall survive the expiration or termination of this Agreement.
Appendix C-10
APPENDIX D
Ethical Business Practices
Section 1 . [Reserved]
Section 2. Overview .
2.1 Each party believes and expects that it will maintain a pattern of ethical conduct and avoid any activity that might result in a violation of any Applicable Law, including any thereof related to anticompetitive activities, anticorruption and antibribery, such as the U.S. Foreign Corrupt Practices Act of 1977, as amended, Mail Fraud Act, Wire Fraud Act and Travel Act and various U.S. State laws that may be applicable to a party or its contracting activities (such U.S. Federal and State laws, collectively, U.S. Anti-Bribery Laws ), the U.K. Bribery Act, Republic of China anti-bribery laws, the Netherlands anti-bribery laws or any other applicable anti-bribery laws, including laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the International Anti-Bribery Convention ), that prohibit the same or similar activities that are prohibited under the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.
2.2 Each party represents and warrants that in performing the activities contemplated under this Agreement, it and its officers, directors, employees, agents and other representatives acting on its behalf will comply with the standards of business practice and conduct set forth in the Code of Conduct of Kraton Performance Polymers, Inc. and Kraton Polymers LLC currently in effect, a copy of which has been made available to all parties. Each party represents and warrants that it will promptly review and comply with updates of such Code provided to FPCC by Kraton Performance Polymers, Inc.
2.3 Each party represents and warrants that no funds or other assets that it will contribute to, or use in furtherance of the performance of this Agreement, are or will be the proceeds of any unlawful activity in any applicable jurisdiction.
Section 3. Proscribed Payments .
3.1 No officer, director, employee, shareholder, agent or any other representative acting on behalf of either party or of any Affiliate or subcontractor of a party shall give to or receive from any Person any commission, fee, rebate, gift or entertainment in connection with the performance by it or its Affiliates under this Agreement, or enter into any business arrangement with any Person other than as provided in this Agreement or another Transaction Document, without prior written notification thereof to the other party.
3.2 Each party affirms that neither it nor any of its officers, directors, employees, shareholders, agents or other representatives acting on its behalf has, directly or indirectly, made, offered, promised or authorized, and agrees that neither it nor any of its officers, directors, employees, shareholders, agents or other representatives acting on its behalf shall, make, offer, promise or authorize, in connection with the performance by it or its Affiliates under this Agreement or in connection with any other business transactions involving a party, any payment,
Appendix D-1
gift, promise or anything of value, whether directly or through any other Person, to or for the use or benefit of any Government Official for the purpose of (a) influencing any act or decision of any such Government Official, including a decision to fail to perform his official functions, (b) inducing any such official to do or omit to do any act in violation of the lawful duty of such official or (c) inducing any such Government Official to use his influence with any government, department, agency or instrumentality in order to assist any of the parties in obtaining or retaining business with, or directing business to any Person or otherwise securing for any Person an improper advantage. Upon violation of this Section 3.2 , the other party may, at its sole option, terminate this Agreement at any time and, notwithstanding any other provision of this Agreement, pay no compensation or reimbursement to any other party to this Agreement whatsoever for any work or services performed under this Agreement from and after the date of termination.
3.3 It is the intent of the parties that no payment or transfer of anything of value shall be made with the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining or maintaining business or any improper advantage for a party or any Affiliate or subcontractor of a party in connection with the performance by it or its Affiliates under this Agreement.
3.4 Each party agrees to notify the other party immediately upon receipt of any solicitation, demand or other request for anything of value, by or on behalf of any Government Official relating to this Agreement.
3.5 Neither party nor any of its officers, directors, employee, agents or other representatives acting on its behalf in connection with this Agreement shall, directly or indirectly, engage in any transaction or dealing in property or interests in property of, receive from or make any contribution of funds, goods or services to or for the benefit of, provide any payments or material assistance to, or otherwise engage in or facilitate any transactions with a Prohibited Person. As used herein, Prohibited Person means (a) any individual or entity that has been determined by competent authority to be the subject of a prohibition in any law, regulation, rule or executive order administered by the U.S. Office of Foreign Assets Control ( OFAC ), (b) the government, including any political subdivision, agency or instrumentality thereof, of any country against which the United States maintains economic sanctions or embargoes, (c) any individual or entity that acts on behalf of, is organized under the laws of, or is owned or controlled by a national or the government of a country against which the United States maintains a comprehensive economic sanction or embargo, (d) any individual or entity that has been identified on the OFAC Specially Designated Nationals and Blocked Persons List (Appendix A to 31 C.F.R. Ch. V), including any individual or entity identified by the U.S. Government as a Specially Designated Terrorist, a Specially Designated Global Terrorist or a Foreign Terrorist Organization, (e) any individual or entity that has been designated under the Annex to Executive Order 13224 or (f) any individual or entity that has been designated on any similar list or order published by the U.S. Government.
Section 4. No Ownership Interest . Each party affirms that (a) no Government Official, or immediate family member of such an official, has any ownership interest, direct or indirect, in such party or its Affiliate or in the contractual relationship established by this Agreement and (b) no such Person is an officer, director, employee, shareholder, agent or representative acting on
Appendix D-2
behalf of such party. If, during the term of this Agreement, there is acquisition of an interest in a party or in this Agreement by a Government Official, or an immediate family member of such an official, or if such Person becomes an officer, director, employee, shareholder agent or representative acting on behalf of such party, such party agrees that it shall make immediate disclosure to the other party.
Section 5. Subcontractors .
5.1 Each party shall require, and shall require each subcontractor, in all agreements in connection with the performance by it or its Affiliates under this Agreement, to agree to the provisions of this Appendix D , including:
1. that such subcontractor and its officers, directors, employees, shareholders agents or representatives acting on its behalf shall comply with the provisions of Sections 2, 3 and 4 of this Appendix D in relation to themselves;
2. an express obligation to notify a party immediately of any such violation or of such subcontractor having reasonable grounds for suspecting that such violation has occurred; and
3. if such violation has occurred, an express right in favor of the contracting party to terminate the relevant subcontract with immediate effect and pay no compensation or reimbursement to subcontractor whatsoever for any service performed after the date of termination.
Each party shall notify the other party immediately on receipt of notification or otherwise becoming aware of any such violation.
5.2 If any subcontractor or any of such subcontractors officers, directors, shareholders, employees, agents or representatives acting on behalf of subcontractor violates any provision of Section 2, 3 or 4 of this Appendix D , as it applies to such subcontractor and its officers, directors, shareholders, employees, agents or representatives acting on behalf of subcontractor pursuant to Section 5.1 of this Appendix D , either party shall, if so required by the other party, terminate the relevant subcontract with immediate effect and pay no compensation or reimbursement to subcontractor whatsoever for any service performed after the date of termination.
Section 6. Annual Certification . Within 30 days prior to each anniversary of the date of this Agreement, each party shall submit to the other party a certification that neither it nor any of its officers, directors, employees, agents or other representatives acting on its behalf in connection with this Agreement have engaged in any transaction or activity in violation of this Appendix D .
Appendix D-3
SCHEDULE 1
Notice Addresses
KP Investment BV
John M. Keynesplein 10
1066 EP Amsterdam
The Netherlands
Attention: Senior Counsel European Region
Telephone: +31 (0) 20-201-7600
Facsimile: +31 (0) 20-201-7690
E-Mail: Susanne.Albert@Kraton.com
with a copy, which shall not constitute notice, to:
Kraton Polymers LLC
15710 John F. Kennedy Blvd., Suite 300
Houston, Texas 77032
Attention: General Counsel
Telephone: 281-504-4700
Facsimile: 281-504-4753
E-Mail: Stephen.Duffy@Kraton.com
Formosa Petrochemical Corporation
Rm. 432, 4F, 201 Tung Hwa N. Rd., Taipei, Taiwan
Attention: Presidents Office
Tel: 886-2-2712-2211 #6282
Fax: 886-2-2718-6886
Email: jmchang@fpcc.com.tw
with a copy, which shall not constitute notice, to:
Rm. 377, 4F, 201 Tung Hwa N. Rd., Taipei, Taiwan
Attention: Presidents Office
Tel: 886-2-2712-2211 #6276
Fax: 886-2-8712-8050
Email: cttsai@fpcc.com.tw
Schedule 1-1
(Kraton Formosa Polymers Corporation)
11F.-1, No. 32, Song Ren Rd.
Xinyi Dist., Taipei City 110
Taiwan R.O.C.
Attention: President
Tel: 886-2-2722-5412 (x301)
Fax: 886-2-2722-5415
with a copy, which shall not constitute notice, to:
Kraton Polymers LLC
15710 John F. Kennedy Blvd., Suite 300
Houston, Texas 77032
Attention: General Counsel
Telephone: 281-504-4700
Facsimile: 281-504-4753
E-Mail: Stephen.Duffy@Kraton.com
Schedule 1-2
SCHEDULE 2
Board Composition
Kraton Directors Representatives
Mr. G. Scott Lee
Mr. Damian Burke
Mr. Steve Tremblay
FPCC Directors Representatives
Mr. Tsao Mihn
Mr. Han-Ting Chen
Mr. Jui-Hsih Chen
Schedule 2-1
SCHEDULE 3
Managers
Name |
Title |
Employer |
||
Michael S. Wong |
President | Kraton Shareholder (Seconded to Project Company) | ||
Hsi-Tse Li |
Vice President | FPCC Shareholder (Seconded to Project Company) | ||
Sam Chen |
Finance and Administration Manager | FPCC Shareholder (Seconded to Project Company) |
Schedule 3-1
SCHEDULE 4
Insurance
1. | Environmental Exposure Insurance : Project Company will have insurance to cover sudden and accidental environmental exposure. |
2. | General Liability Insurance : Project Company will carry general liability insurance. |
3. | Property Insurance : Project Company will have insurance to cover losses associated with property loss events. |
4. | Business Interruption and Contingent Business Interruption Insurance : Project Company will have insurance to cover business interruption and contingent business interruption, with deductibles for time and value (45 days). |
5. | Insurance for exposures related to Construction and Operational Completion of the Plant. |
6. | Insurance for Other Exposures that might be dictated by local law and custom, based on the experience and advice of FPCC on coverage such as workers compensation, medical & disability, and auto liability. |
7. | Insurance for Directors (Representatives) and Managers : Project Company will carry Directors & Officers liability coverage, which will be procured by Kraton Shareholder at Project Companys expense. |
8. | Product Liability : Project Company will be added as an additional insured under Kraton Shareholders existing product liability policy on or before the date on which Product produced by the Plant is sold by Kraton Shareholder or its Affiliate to a Third Party. |
Schedule 4-1
Exhibit 10.4
Execution Version
GROUND LEASE
by and between
FORMOSA PETROCHEMICAL CORPORATION
and
also known as
KRATON FORMOSA POLYMERS CORPORATION
Dated as of February 27, 2013
TABLE OF CONTENTS
ARTICLE I LEASE OF PLANT SITE; OWNERSHIP |
1 | |||
Section 1.1 Lease of Plant Site |
1 | |||
Section 1.2 Industrial Development Bureau |
1 | |||
Section 1.3 Use of Plant Site |
2 | |||
Section 1.4 Registration, Permits and Approvals |
2 | |||
Section 1.5 Ownership of the Plant |
2 | |||
Section 1.6 Optional Lease of Additional Land |
2 | |||
ARTICLE II DELIVERY OF PLANT SITE |
3 | |||
Section 2.1 Plant Site Condition |
3 | |||
Section 2.2 Further Obligations of Lessor |
4 | |||
ARTICLE III LEASE FEE AND PAYMENTS |
4 | |||
Section 3.1 Plant Site Lease Fee |
4 | |||
Section 3.2 IDB Reimbursements |
4 | |||
Section 3.3 Payment Schedule |
4 | |||
Section 3.4 Payment Disputes; Dispute Resolutions |
4 | |||
ARTICLE IV TAXES |
5 | |||
Section 4.1 Payment by Lessor |
5 | |||
ARTICLE V UTILITIES INFRASTRUCTURE |
5 | |||
Section 5.1 Permanent Infrastructure and Utilities |
5 | |||
Section 5.2 Completion of Utilities Infrastructure |
5 | |||
Section 5.3 Maintenance of Utilities and Infrastructure |
6 | |||
Section 5.4 Outsourcing |
6 | |||
ARTICLE VI QUIET ENJOYMENT |
6 | |||
Section 6.1 Quiet Enjoyment |
6 | |||
ARTICLE VII ACCESS |
7 | |||
Section 7.1 Access Rights |
7 | |||
Section 7.2 Utility Rights |
7 | |||
Section 7.3 Drainage Rights |
7 | |||
ARTICLE VIII ENVIRONMENTAL MATTERS |
7 | |||
Section 8.1 Land Quality Upon Delivery |
7 | |||
Section 8.2 Remediation by Lessor |
8 | |||
Section 8.3 Remediation During the Term |
8 | |||
Section 8.4 Land Quality Upon End of Term |
9 | |||
ARTICLE IX EXPROPRIATION AND CASUALTY LOSS |
9 | |||
Section 9.1 Expropriation |
9 | |||
Section 9.2 Casualty Damage |
9 | |||
Section 9.3 Restoration |
9 |
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ARTICLE X LIENS |
10 | |||
ARTICLE XI TERM AND TERMINATION |
10 | |||
Section 11.1 Term |
10 | |||
Section 11.2 Termination |
10 | |||
Section 11.3 Effect of Termination |
11 | |||
ARTICLE XII DEFAULT AND REMEDIES |
11 | |||
Section 12.1 Lessee Default |
11 | |||
Section 12.2 Lessor Default |
11 | |||
ARTICLE XIII INDEMNITY |
12 | |||
Section 13.1 Indemnification by Lessor for Environmental Matters |
12 | |||
Section 13.2 Indemnification by Lessee for Environmental Matters |
12 | |||
Section 13.3 Mutual Indemnification |
12 | |||
Section 13.4 Indemnification Procedures |
12 | |||
ARTICLE XIV FORCE MAJEURE |
13 | |||
Section 14.1 Excuse for Force Majeure |
13 | |||
Section 14.2 Change in Applicable Law |
13 | |||
ARTICLE XV MISCELLANEOUS PROVISIONS |
13 | |||
Section 15.1 General Provisions |
13 | |||
Section 15.2 Lessor Representations and Warranties |
13 | |||
Section 15.3 Governing Law |
14 | |||
Section 15.4 Dispute Resolution |
14 | |||
Section 15.5 Ethical Business Practices |
14 | |||
Section 15.6 Execution and Ratification |
15 | |||
Section 15.7 Conflicting Provisions |
15 | |||
Section 15.8 Language |
15 | |||
APPENDICES | ||||
Appendix A Definitions |
||||
Appendix B General Provisions |
||||
Appendix C Dispute Resolution Procedures |
||||
Appendix D Ethical Business Practices |
||||
SCHEDULES | ||||
Schedule 1 Notice Addresses |
||||
EXHIBITS | ||||
Exhibit 1 Plant Site Map |
||||
Exhibit 2 Environmental Assessment Report |
||||
Exhibit 3 HSE Policy |
||||
Exhibit 4 Utilities Infrastructure |
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GROUND LEASE
This GROUND LEASE (this
Ground Lease
) is made and entered as of February 27, 2013, by and between Formosa Petrochemical Corporation, a company limited by shares incorporated
in the Republic of China (
Lessor
), and
, also known as Kraton Formosa Polymers Corporation, a limited liability company organized in the Republic of China (
Lessee
). This Lease has been executed and delivered pursuant to the
transactions contemplated by the Shareholder Agreement. Capitalized terms used in this Ground Lease (including all Appendices, Schedules and Exhibits hereto) shall have the meanings ascribed thereto in
Appendix A
.
NOW, THEREFORE , in consideration of the mutual covenants and agreements set forth herein and other valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, Lessor and Lessee agree as follows:
ARTICLE I
LEASE OF PLANT SITE; OWNERSHIP
Section 1.1 Lease of Plant Site . Subject to the terms and conditions of this Ground Lease, during the term of this Ground Lease, Lessor shall lease to Lessee, and Lessee shall lease from Lessor, the Plant Site and all rights, privileges and appurtenances belonging or pertaining to the Plant Site, and subject to all reservations and limitations of this Ground Lease. The Plant Site includes the IDB Portion described below, which is hereby subleased to Lessee by Lessor. The Plant Site is an area of approximately five hectares, the specific size, location and the four-side boundaries of which are delineated on the map attached hereto as Exhibit 1 (the Plant Site Map ). The Plant Site shall have ready access via a road located at a convenient access point for construction vehicles to enable construction and operation of the Plant and all ancillary equipment, infrastructure and facilities, as well as all deliveries.
Section 1.2 Industrial Development Bureau .
(a) As of the date hereof, the Ministry of Economic Affairs owns land contiguous with the Plant Site the boundaries of which are delineated on the Plant Site Map (the IDB Portion ). Lessor has a permit (or other similar right) to use the IDB Portion for commercial purposes, including the Permitted Purposes.
(b) The IDB has agreed to either (i) transfer title to the IDB Portion to Lessor (the Transfer Option ) or, alternatively, (ii) lease the IDB Portion directly to Lessee (the Lease Option ), the choice of (i) or (ii) in IDBs discretion. Each party shall use its best efforts to facilitate and shall cooperate with the IDB in implementing the Transfer Option or Lease Option, whichever is selected by the IDB, as soon as possible.
(c) In the event IDB (on behalf of the Ministry of Economic Affairs) transfers title to the IDB Portion to Lessor, the area of the IDB Portion marked as part of the Plant Site on the Plant Site Map shall be deemed a part of the Plant Site for all purposes under this Ground Lease.
Section 1.3 Use of Plant Site . Lessee shall use and occupy the Plant Site for the following purposes: (i) to design, construct and install the Plant and all ancillary equipment, infrastructure and facilities; (ii) to operate the Plant and all ancillary equipment, infrastructure and facilities; and (iii) to carry out all other production and business activities incidental or ancillary to the foregoing or otherwise permitted under the Shareholder Agreement or any other Transaction Document (the Permitted Purposes ). Lessee shall occupy, use and operate the Plant Site in material compliance with all Applicable Law of the Republic of China, all relevant rules and regulations published from time to time for the Mailiao Industrial Park by the Head Office of Lessor ( Industrial Park Rules ) and the HSE Policy.
Section 1.4 Registration, Permits and Approvals .
(a) Lessor shall obtain and maintain in full force and effect all approvals, permits, consents and registrations with the relevant Government Authorities as required by Applicable Law in connection with the Ground Lease, and shall provide commercially reasonable assistance to Lessee in connection with Lessees application for required permits and registrations for this Ground Lease, and construction and operation of the Plant.
(b) If the Transfer Option or Lease Option is not consummated by April 30, 2013, or the final Environmental Impact Assessment committee approval of the EPA permit is not received by July 31, 2013, or the construction permit is not granted by December 31, 2013 (each, an Approval Failure ), then either party may elect to terminate this Agreement and each other transaction document, in which event Lessee will be dissolved in accordance with the liquidation and dissolution procedures set forth in the Shareholder Agreement as promptly as practicable thereafter. This termination right and agreement to dissolve and liquidate Lessee shall be given effect notwithstanding any provision to the contrary in the Shareholder Agreement.
Section 1.5 Ownership of the Plant . Lessor acknowledges and agrees that Lessee owns all right, title and interest in and to the Plant and all ancillary equipment, infrastructure and facilities on the Plant Site. Lessor shall do all things necessary to ensure that Lessee shall be the sole and absolute owner of the Plant and all ancillary equipment, infrastructure and facilities on the Plant Site, and shall do all acts reasonably requested by Lessee to assist and facilitate Lessee in asserting and maintaining such ownership.
Section 1.6 Optional Lease of Additional Land .
(a) Lessor hereby grants to Lessee an irrevocable option, exercisable in Lessees sole discretion from the date of this Ground Lease until the third anniversary of final acceptance of the Plant from the Construction Contractor (the Option Period ), to lease an additional tract of land adjacent to the Plant Site (the Optional Plant Site ). The specific size, location and the four-side boundaries of the Optional Plant Site are delineated on the Plant Site Map.
2
(b) If Lessee desires to lease all or part of the Optional Plant Site, Lessee shall deliver written notice to Lessor of its election to lease the Optional Plant Site (or a part thereof), including the number of hectares Lessee is electing to lease, on or before the last day of the Option Period. The Optional Plant Site shall be leased to Lessee on substantially the same terms and conditions as are set forth in this Ground Lease and in accordance with the following:
(i) Lessee may use and occupy the Optional Plant Site for the following purposes: (1) to design, construct and install an expansion of the Plant production capabilities and all ancillary equipment, infrastructure and facilities; (2) to operate the expansion and all ancillary equipment, infrastructure and facilities; and (3) to carry out all other production and business activities incidental or ancillary to the foregoing or otherwise permitted under the Shareholder Agreement and any other Transaction Document.
(ii) Lessee shall occupy, use and operate the Optional Plant Site in material compliance with all Applicable Law of the Republic of China, Industrial Park Rules and the HSE Policy.
(iii) The lease fee for the Optional Plant Site shall be calculated in the same manner as the Lease Fee set forth in Section 3.1 .
(iv) The term of Lessees lease of the Optional Plant Site shall be coterminous with the term of this Ground Lease.
(v) The parties shall conduct an environmental assessment of the condition of the Optional Plant Site in a manner described in Article VIII prior to the delivery of the Optional Plant Site to Lessee.
(vi) Lessor shall, at its own cost and expense, procure, design, engineer and construct the utilities infrastructure necessary to support the intended use of the Optional Plant Site.
ARTICLE II
DELIVERY OF PLANT SITE
Section 2.1 Plant Site Condition . Lessor shall deliver the Plant Site to Lessee no later than a date to be agreed by the parties (the Delivery Date ). Prior to the delivery of the Plant Site, Lessor shall at its own cost and expense remove all surface and subsurface structures on or below the Plant Site (other than the pilings introduced to the Plant Site prior to the date hereof to reinforce the underground structure). Except for the pilings described above, at the time of delivery, the Plant Site shall:
(a) be free of all surface and subsurface structures and be earth-filled; and
(b) be free of Hazardous Materials (subject to Lessors remediation obligation set forth in Section 8.2(a)) .
3
Section 2.2 Further Obligations of Lessor . After delivery of the Plant Site to Lessee, if at any time during the construction of the Plant, any unknown underground or subsurface structure is discovered under the Plant Site, Lessor shall at its own cost remove all such structures within 10 Business Days after receipt of written notice thereof from Lessee.
ARTICLE III
LEASE FEE AND PAYMENTS
Section 3.1 Plant Site Lease Fee . The annual fee (the Lease Fee ) for the lease of the Plant Site (and Optional Plant Site, if applicable) shall be calculated from and after the Delivery Date as follows:
(a) The area of the Plant Site (and Optional Plant Site, if applicable), as measured in pings; multiplied by
(b) NT$48 per ping per month; multiplied by
(c) 12 months; multiplied by
(d) 1.05 (to account for the 5% business Tax imposed upon issuance by Lessor of an invoice for the Lease Fee ( Business Tax ), provided that the parties agree that the Business Tax shall be adjusted as it is so adjusted by the applicable Governmental Authority).
The Lease Fee may be adjusted from time to time if it is so adjusted for all sister-companies of FPCC upon notice to Lessor.
Section 3.2 IDB Reimbursements . If the IDB Portion is leased to Lessor from the IDB on behalf of the Ministry of Economic Affairs, Lessee shall reimburse Lessor for the positive difference, if any, between the annual lease fee for the IDB Portion paid by Lessor and the Lease Fee.
Section 3.3 Payment Schedule . Lessee shall pay the Lease Fee to Lessor on an annual basis on July 15 of each year. Each lease payment will be for a 12-month period from January 1 to December 31 for the year in which such Lease Fee is paid. The Lease Fee shall be prorated for partial years.
Section 3.4 Payment Disputes; Dispute Resolutions . Lessee may object to invoiced amounts at any time before, at the time of or after payment is made, provided that such objection is made in writing within two years following the date of the disputed invoice. Payment of any invoice by Lessee shall not constitute approval thereof.
4
The parties shall meet as expeditiously as possible to resolve any dispute. Any dispute that is not resolved within 60 days following delivery of written notice by Lessee shall be resolved in accordance with the dispute resolution procedures set forth in Section 15.4 .
ARTICLE IV
TAXES
Section 4.1 Payment by Lessor . In the event the Plant Site (and Optional Plant Site, if applicable) or any part thereof (including improvements, fixtures and personal property located at, in or under the Plant) are subject to ad valorem taxes and assessments, general or special, Lessor shall pay all such ad valorem taxes and assessments for any period contained in the term of this Ground Lease, except for the Business Tax, which is accounted for in clause (iv) of the Lease Fee. Lessor shall also be solely responsible for all Taxes, fees and other assessments associated with this Ground Lease or any payments or obligations hereunder. Any amounts payable by Lessee to Lessor under this Lease shall be inclusive of any sales, use, value-added, transfer or similar Taxes.
ARTICLE V
UTILITIES INFRASTRUCTURE
Section 5.1 Permanent Infrastructure and Utilities .
(a) Lessor and Lessee shall each, at its own cost and expense, procure, design, engineer, construct and place into service certain utilities infrastructure, as identified on Exhibit 4 (the Utilities Infrastructure ), in each case with sufficient capacity to serve the needs of the Plant if the Plant is operating at a capacity of 36 KT per year under normal operating conditions, subject to reasonable notice from Lessee for peak demand periods. The Utilities Infrastructure shall be connected to the utilities rack at the locations identified on Exhibit 4 or on the Plant Site Map.
(b) Lessee shall, at its own cost and expense, procure, design, engineer and construct a utilities delivery rack inside the battery limit of the Plant Site at which the supply of the utilities under Section 5.1(a) and Section 5.1(b) shall be delivered to the Plant. The location of the utilities rack is identified on the Plant Site Map.
(c) The design, engineering and construction of the Utilities Infrastructure and the utilities delivery rack shall comply with Applicable Laws and be in accordance with best practice in the petrochemical industry.
Section 5.2 Completion of Utilities Infrastructure . Lessor shall complete the design and construction of and place into operation the Utilities Infrastructure for which it is responsible at least 30 days prior to the start of phased commissioning of the Plant. If Lessor fails to place the Utilities Infrastructure for which it is responsible into service on or before the deadline in the immediately preceding sentence, then, in addition to all other rights and remedies available at law and equity: (i) Lessee may,
5
at its option and in its sole discretion, retain a Third Party contractor to complete construction and place into operation the Utilities Infrastructure or direct the Lessors contractor (if applicable) to complete construction of and place into operation the Utilities Infrastructure, in each case the costs and expenses of which shall be borne entirely by Lessor, and with such access rights and cooperation from Lessor as may be necessary, in Lessees judgment, to complete such construction and place into operation the Utilities Infrastructure; and (ii) Lessee shall not be required to pay the Lease Fee for the Plant Site from the first day of delay in such construction or placement into operation until the day on which such Utilities Infrastructure is constructed and fully operational.
Section 5.3 Maintenance of Utilities and Infrastructure . Lessor shall be responsible at its sole cost and expense for the maintenance and operation of the Utilities Infrastructure outside the battery limit of the Plant Site and up to the utilities rack within the battery limit of the Plant Site.
Section 5.4 Outsourcing . Lessor and Lessee may each perform its obligations under this Article V directly or through contractual relationships with its Affiliates or Third Parties; provided , however , that prior to engaging any Third Party to perform utilities services on behalf of such party, such Third Party must execute a binding obligation of confidentiality reasonably satisfactory to the other party to this Ground Lease.
ARTICLE VI
QUIET ENJOYMENT
Section 6.1 Quiet Enjoyment . Lessor covenants that Lessees use of the Plant Site shall be free of interference, disturbance or obstruction by Lessor, its Affiliates or any Third Party, or originated from adjacent lands under the control of, or the land owned by Lessor or its Affiliates or any Third Party. During the term of this Ground Lease,
(a) if any Third Party interferes with Lessees use of the Plant Site, Lessor shall be responsible for resolving this matter as soon as possible but in no event later than 30 days after Lessees written notice thereof, failing which Lessee shall be entitled to temporarily withhold payment of the Lease Fee, without prejudice to any other rights or remedies available to Lessee by law or in equity; and
(b) Lessor shall not build or allow to be built any building, structure, facility or object that (1) would interfere with Lessees use of the Plant Site, (2) could reasonably be expected to affect the safety or operation of the Plant or (3) is or could reasonably be expected to be contrary to Lessees HSE Policy, a copy of which is attached hereto as Exhibit 3 .
6
ARTICLE VII
ACCESS
Section 7.1 Access Rights . Lessor covenants that Lessee shall have access, free of charge, from the Plant across the Mailiao Industrial Park and to a main road. Such access shall be sufficient to allow passage of large vehicles, including 40 foot container trucks and other regular container trucks. Lessor also covenants that Lessee shall have full right of unrestricted access to the roads, bridges and paths owned or managed by Lessor, free of additional charge, for all the usages in connection with its design, construction and operation of the Plant and all ancillary equipment, infrastructure and facilities on the Plant Site, including transportation of personnel, raw materials, products and other goods to and from the Plant Site. Lessor further covenants that Lessee shall have the right to use, free of additional charge, areas outside the Plant Site reasonably necessary in connection with the design, construction or operation of the Plant and all ancillary equipment, infrastructure and facilities on the Plant Site, including docks, loading and unloading areas and parking areas; provided that Lessees use of such areas outside of the Plant Site shall comply with Industrial Park Rules.
Section 7.2 Utility Rights . Lessor covenants that Lessee shall have the right to use, free of charge, the public road adjacent to the Plant Site for the installation, maintenance, operation, replacement and repair of communication lines, sewer, water, gas, electric and other utilities and related facilities for any of the foregoing and for fuel, feedstock and product lines and related facilities, including any pipe, line or similar distribution network owned by Lessor or its Affiliates used in connection with such utilities and related facilities, in each case with a capacity sufficient to serve the needs of the Plant when operated at rated capacity; provided that Lessees use of such public road shall comply with Industrial Park Rules.
Section 7.3 Drainage Rights . Lessor covenants that Lessee shall have the right, free of charge, to tap into and use the storm drainage lines and related facilities located on land outside the battery limit of the Plant Site for the purpose of draining any and all waste water and storm water runoff from the Plant; provided that Lessees use of such drainage lines and facilities shall comply with Industrial Park Rules.
ARTICLE VIII
ENVIRONMENTAL MATTERS
Section 8.1 Land Quality Upon Delivery . Prior to the date hereof, the parties jointly appointed a suitably qualified independent Third Party (an Assessor ) to conduct an environmental assessment of the soil and underground water conditions on and under the Plant Site. The parties agreed to the manner and scope in which such environmental assessment was to be conducted, and such assessment will be conducted in accordance with applicable Environmental Laws of the Republic of China (the ROC Environmental Standards ) in effect at the time of the assessment. The findings of such assessment shall be used as the environmental baseline (the Original Quality Level ) for the Plant Site. The parties caused the Assessor to detail all the findings of such assessment in an environmental assessment report in both the English and Chinese languages. The assessment includes, among other things, the amount of Hazardous Materials, if any, present in the soil and underground water on and under the Plant Site, their likely source and a projection of the amount of Hazardous Materials leaching onto the Plant Site over time due to existing causes. Lessor shall bear the cost of such environmental assessment. A copy of the environmental assessment report will be attached to this Ground Lease as Exhibit 2 .
7
Section 8.2 Remediation by Lessor .
(a) If the soil and underground water conditions on and under the Plant Site are not in compliance with the relevant prevailing ROC Environmental Standards, Lessor shall at its own cost and expense remediate the Plant Site in accordance with the ROC Environmental Standards. Lessor shall use its reasonable best efforts to complete the remediation prior to the Delivery Date and in any event shall conduct and complete the remediation as expeditiously as possible.
(b) Prior to the performance of the remediation, Lessor shall consult Lessee and formulate a plan for the remediation work, including provisions for the removal, treatment and proper disposal of Hazardous Materials on or under the Plant Site. The remediation plan shall reflect the best practices regarding removal and treatment of Hazardous Materials in the chemical industry. Lessor shall submit its remediation plan to Lessee for review and comment, and shall revise such plan to reflect all comments of Lessee (if any). Remediation of the Plant Site shall be conducted in accordance with the agreed remediation plan.
(c) After completion of the remediation of the Plant Site in accordance with the remediation plan, the parties shall jointly appoint an Assessor to conduct an environmental assessment of the Plant Site. The Assessor shall determine the Original Quality Level of the Plant Site as of the time of the assessment and whether the Plant Site meets or exceeds ROC Environmental Standards. If the Assessor determines that any Hazardous Materials on the Plant Site have not been fully remediated, or that the condition of the Plant Site does not meet or exceed ROC Environmental Standards, the parties shall follow the procedures set forth in this Section 8.2 to further remediate the Plant Site until an Assessor is able to certify that the Plant Site is free of Hazardous Materials and in compliance with ROC Environmental Standards.
Section 8.3 Remediation During the Term .
(a) If at any time during the term of this Ground Lease, Lessee discovers the presence of Hazardous Materials on the Plant Site that are caused by operations outside the Plant Site, Lessor shall at its own cost and expense promptly remediate such contamination in accordance with the procedures and standards set forth in Section 8.2 .
(b) If at any time during the term of this Ground Lease, Lessee discovers the presence of Hazardous Materials on the Plant Site that are caused by Lessees operations on the Plant Site, Lessee shall at its own cost and expense promptly remediate such contamination to the extent it is required to do so under ROC Environmental Laws.
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(c) Any remediation required by this Section 8.3 shall be conducted in compliance with ROC Environmental Standards.
Section 8.4 Land Quality Upon End of Term . No later than 10 Business Days after the expiration of the term of this Ground Lease, the parties shall jointly appoint an Assessor to conduct an environmental assessment of the soil and underground water conditions on and under the Plant Site. The parties shall mutually agree to the manner and scope in which such environmental assessment is conducted, and such assessment shall be conducted in accordance with ROC Environmental Standards in effect at the time of the assessment. The parties shall cause the Assessor to detail all the findings of such assessment in an environmental assessment report in the English language, which shall, among other things, specifically detail the amount of Hazardous Materials, if any, present in the soil and underground water on and under the Plant Site and their likely source. Lessee shall bear the cost of such environmental assessment. If the soil and underground water conditions on and under the Plant Site are not in compliance with the relevant prevailing ROC Environmental Standards, and, according to the Assessors report, such non-compliance was caused by Lessees operations, Lessee shall at its own cost and expense remediate the Plant Site of conditions it caused as soon as reasonably practicable and in accordance with ROC Environmental Standards.
ARTICLE IX
EXPROPRIATION AND CASUALTY LOSS
Section 9.1 Expropriation . In the event that the Plant Site is expropriated by a Governmental Authority or all or part of the Plant is taken by a Governmental Authority for public or quasi-public use, the compensation for such expropriation or taking with respect to the Plant Site shall be given to Lessor, and the compensation with respect to the Plant and any ancillary equipment, infrastructure and facilities on the Plant Site shall be given to Lessee. In case of partial expropriation of the Plant Site, the rent shall be reduced in proportion to the area of the Plant Site expropriated.
Section 9.2 Casualty Damage . If the Plant is materially damaged or destroyed by fire or other casualty or is in part demolished or materially damaged and requires restoration, Lessee shall promptly notify Lessor in writing of such damage or destruction or demolition, generally describing the nature and extent of such damage or destruction.
Section 9.3 Restoration . In the event of any damage to or destruction of all or any material part of the Plant, and whether or not the insurance proceeds on account of such damage or destruction are sufficient for the purpose, Lessee, at its expense, shall either (i) promptly commence and complete the restoration, replacement or redevelopment of the damaged portion of the Plant, or (ii) if Lessee determines to defer restoration, replacement or redevelopment of the damaged portion of the Plant, Lessee shall place such damaged portion in such condition as may be required by Applicable Law and to the reasonable satisfaction of Lessor, so as not to constitute a hazardous condition or public or private nuisance.
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ARTICLE X
LIENS
Lessor shall not suffer or permit to exist Liens against the Plant Site, the Plant or any ancillary equipment, infrastructure and facilities by reason of claims of mechanics, materialmen or similar claimants for work, labor or materials furnished to the Lessor. In the event any such Lien is filed against the Plant Site, the Plant or any such ancillary equipment, infrastructure and facilities, Lessor, within 30 days after the filing thereof, shall institute proceedings to discharge such Lien, by payment, bonding or otherwise and shall duly prosecute such proceedings to completion.
ARTICLE XI
TERM AND TERMINATION
Section 11.1 Term . This Ground Lease shall be and remain in full force and effect for the period commencing on the date on which this Ground Lease is ratified by the Board of Lessee and ending on the date of completion of demolition and decommissioning of the Plant or such other date as is mutually agreed by the parties in writing.
Section 11.2 Termination . Lessee shall have the right to terminate this Ground Lease if:
(a) The Plant Site is expropriated by a Governmental Authority, or the Plant is taken by a Governmental Authority for public or quasi-public use;
(b) The Plant is damaged and Lessee elects, in its sole discretion, not to rebuild;
(c) A portion of the Plant Site is expropriated by a Governmental Authority or a portion of the Plant is taken by a Governmental Authority for public or quasi-public use so as to render the remaining portion of the Plant Site or the Plant, as the case may be, unusable by Lessee for its intended purpose in Lessees commercially reasonable judgment;
(d) an Approval Failure occurs as described in Section 1.4(b) ; or
(e) The Plant Site is contaminated by Hazardous Materials so as to render the Plant Site or the Plant unusable by Lessee for its intended purpose in Lessees commercially reasonable judgment.
Lessor and Lessee hereby waive any right they may have to cause the termination of this Ground Lease, by operation of law or otherwise, except as set forth in this Section 11.2 .
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Section 11.3 Effect of Termination .
(a) Upon the termination or expiration of this Ground Lease, Lessee shall at its sole cost and expense proceed to remove all above-ground Plant structures and any below-ground foundations or other structures (other than the pilings introduced to the Plant Site prior to the date hereof to reinforce the underground structure) in a good and workmanlike manner and in compliance with Applicable Laws.
(b) Upon the termination or expiration of this Ground Lease, all rights and obligations under this Ground Lease shall terminate except to the extent set forth otherwise in this Section 11.3 . The provisions of Article XIII , Section 15.1 , Section 15.3 , Section 15.4 Section 15.7 and Section 15.8 , and Sections 1 (Agreement Interpretation), 4 (Notices), 6 (No Consequential or Special Damages) and 9 (Public Announcements), in each case of Appendix B , as well as any definitions in Appendix A necessary to understand the surviving provisions, shall survive termination of this Ground Lease. Termination of this Ground Lease shall not alter the then-existing claims, if any, of any party for breaches of this Ground Lease occurring prior to the termination date and the obligations of the parties with respect thereto shall survive termination. If Lessee terminates this Ground Lease pursuant to Section 11.2 , such termination shall not result in additional liability of any kind for Lessee as a result of such termination.
ARTICLE XII
DEFAULT AND REMEDIES
Section 12.1 Lessee Default . It shall constitute a default by Lessee (a Lessee Default ) if Lessee fails to timely pay any undisputed invoiced amount in accordance with the provisions of Article III , which failure continues for more than 30 days following receipt of written notice to Lessee that such invoiced amount is past due. Upon the occurrence of a Lessee Default, Lessor may, at its option and as its sole remedy (other than its right to receive payment in full for all amounts due hereunder), require Lessee to pay interest on the amount due and unpaid at the Default Rate thereon.
Section 12.2 Lessor Default . It shall constitute a default by Lessor (a Lessor Default ) if Lessor fails to timely perform any obligations of Lessor under this Ground Lease, which failure continues and remains uncured for more than 30 days after written notice from Lessee to Lessor. Upon the occurrence of a Lessor Default, in addition to all other remedies available at law and set forth in this Ground Lease, Lessee shall be entitled to equitable relief in accordance with Section 5 of Appendix B .
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ARTICLE XIII
INDEMNITY
Section 13.1 Indemnification by Lessor for Environmental Matters . Lessor shall indemnify, defend and hold Lessee, its Affiliates, shareholders and its shareholders Affiliates and its and their officers, board members, directors, employees, agents, consultants and representatives, harmless from and against all Losses of whatsoever kind or character (including Losses arising out of or related to investigations by Governmental Authorities, remediation work ordered by a Governmental Authority, demanded by Third Parties or pursuant to Section 8.2 , and costs and expenses of further investigations, fines and penalties), to the extent arising out of or in connection with any Hazardous Material in the soil or underground water on or under the Plant Site on or prior to the Delivery Date, or brought or created on the Plant Site by Lessor, its Affiliate or any Third Party after the Delivery Date, except to the extent such Losses were caused by the gross negligence or willful misconduct of Lessee .
Section 13.2 Indemnification by Lessee for Environmental Matters . Lessee shall indemnify, defend and hold Lessor, its Affiliates and its and their officers, directors, employees, agents, consultants and representatives, harmless from and against all Losses of whatsoever kind or character (including Losses arising out of or related to investigations by Governmental Authorities, remediation work ordered by a Governmental Authority or demanded by Third Parties, and costs and expenses of further investigations, fines and penalties), to the extent arising out of or in connection with any Hazardous Material in the soil or underground water on or under the Plant Site that is attributable to Lessees or its employees, agents or contractors conduct, management, use or occupancy of the Plant Site after the date that the Assessor certifies that the Plant is free of Hazardous Materials and in compliance with ROC Environmental Standards in accordance with Section 8.2(c) , except to the extent such Losses were caused by the gross negligence or willful misconduct of Lessor .
Section 13.3 Mutual Indemnification . Lessee and Lessor (an Indemnitor ) shall, without duplication, indemnify, defend and hold the other (the Indemnitee ) harmless from and against any and all claims by or on behalf of anyone arising from Indemnitors or its employees, agents or contractors conduct, management, use or occupancy of the Plant Site, or any work or thing whatsoever done by Indemnitor or any Third Party present on the Plant Site through direct or indirect sanction of Indemnitor (other than Indemnitee and Indemnitees employees, agents, contractors, invitees and licensees), or arising from any breach or default on the part of Indemnitor in the performance of any covenant or agreement on the part of Indemnitor to be performed under this Ground Lease, or arising from any grossly negligent or wrongful act or omission of Indemnitor or its employees, agents or contractors occurring during the term of this Ground Lease in, on or about the Plant Site, and from and against all Losses, incurred in or in connection with any such claim or action or proceeding brought thereon. If any conduct giving rise to an indemnity obligation results from the joint acts or omissions of both parties, the duty of indemnification hereunder shall be in proportion to the allocable share of the total conduct attributable to each party.
Section 13.4 Indemnification Procedures . All claims for indemnification under this Article XIII shall be asserted and resolved in accordance with the procedures set forth in Section 7 of Appendix B .
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ARTICLE XIV
FORCE MAJEURE
Section 14.1 Excuse for Force Majeure . If, because of Force Majeure, Lessor or Lessee is rendered wholly or partly unable to perform its obligations under this Ground Lease (other than any obligation to pay money), that party shall be excused from whatever performance is affected by the Force Majeure event (other than any obligation to pay money) to the extent so affected, provided that:
(a) The non-performing party, within 48 hours (unless a shorter time frame is required by the circumstances and otherwise subject to all Applicable Laws) after the occurrence of the Force Majeure gives the other party written notice describing the particulars of the occurrence;
(b) The non-performing party uses its reasonable best efforts to remedy its inability to perform (provided, however, that no party shall be required to settle any strike, walkout, lockout or other labor dispute on terms which, in the sole judgment of the party involved in the dispute, are contrary to its interest, it being understood that the settlement of strikes, walkouts, lockouts or other labor disputes shall be at the sole discretion of the party having the difficulty); and
(c) When the non-performing party is able to resume performance of its obligations under this Ground Lease, that non-performing party shall give the other party written notice to that effect and shall resume such performance.
Section 14.2 Change in Applicable Law . In the event that a party is unable to perform any duty or obligation hereunder due to changes in any Applicable Law, the parties shall negotiate in good faith an amendment to this Ground Lease that would allow such party to continue to perform substantially as required by this Ground Lease and to comply with such change in the Applicable Laws.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 General Provisions . The provisions set forth in Appendix B shall apply to this Ground Lease.
Section 15.2 Lessor Representations and Warranties . In addition to the representations and warranties set forth in Section 3 of Appendix B , Lessor represents and warrants to Lessee on the date hereof and on the Delivery Date that:
(a) Lessor owns lawful title to or has the right to sublease the Plant Site free and clear of any Lien, and Lessor has the right to use the IDB Portion for commercial purposes, including the Permitted Purposes. The Plant Site Map accurately depicts the boundaries of the Plant Site, IDB Portion and the Optional Plant Site as registered with the appropriate Governmental Authorities of the Republic of China in accordance with
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Applicable Law. Lessor has all the right, power and authority, has taken all necessary action, including the payment of all Taxes and fees to which it is liable, and has obtained all required approvals of all Governmental Authorities and all other required consents and permits to lease the Plant Site and the Optional Plant Site to Lessee upon the terms and subject to the conditions of this Ground Lease. All such approvals, permits and authorizations are in full force and effect. No violations have been recorded or alleged in respect of any such approvals, permits and authorizations, and no proceeding is pending or, to the knowledge of Lessor, threatened or contemplated with respect to the revocation or limitation of such approvals, permits and authorizations.
(b) The Plant Site has been developed, operated and maintained in full compliance with ROC Environmental Standards, and does not violate any applicable ROC Environmental Standards. There has been no contamination of soil and underground water on and under the Plant Site. All Hazardous Materials on and under the Plant Site have been handled and disposed of in accordance with applicable ROC Environmental Standards.
(c) Lessor is not engaged in or a party to or, threatened with or subject to any action, proceedings, investigation or legal, administrative, arbitration or other method of settling disputes or disagreements relating to the Plant Site.
Section 15.3 Governing Law . This Ground Lease and the rights and duties of the parties arising out of this Ground Lease shall be governed by, and construed in accordance with, the applicable laws of the Republic of China, without reference to the conflict of applicable laws and rules thereof that would direct the application of the laws of another jurisdiction.
Section 15.4 Dispute Resolution . The parties shall use their reasonable best efforts to resolve all disputes relating to this Ground Lease by good faith negotiations. If either party gives notice to the other party that a dispute has arisen, and the parties are unable within 10 Business Days of such notice to resolve the dispute, then it shall be referred to an officer of each of Lessor and Lessee, in each case that is not on the Board of Lessee. If such officers are unable within 20 Business Days to resolve the dispute, then it shall be referred to an executive officer of each party or its Affiliate (or in the case of Project Company, of KP Investment or its Affiliate) with decision-making authority of Lessee and Lessor who have not previously been involved in the dispute. If these individuals are unable within 20 Business Days to resolve the dispute, then either party may submit the dispute to mediation in accordance with the provisions of Appendix C . Any dispute not resolved through mediation in accordance with the provisions of Appendix C shall be finally resolved by arbitration in accordance with the provisions of Appendix C .
Section 15.5 Ethical Business Practices . The parties shall comply with the provisions of Appendix D .
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Section 15.6 Execution and Ratification . The parties acknowledge and agree that the Preparatory Office for Lessee shall execute this Ground Lease for and on behalf of Lessee. This Lease shall be effective upon the ratification of this Ground Lease by the Board of Lessee.
Section 15.7 Conflicting Provisions . The several parts of, and attachments to, this Ground Lease are intended to be interpreted as mutually explanatory of one another. In the case of any conflict or inconsistency between or among the body of this Ground Lease or Appendix A , on the one hand, and any other Appendix or Exhibit, on the other hand, the provisions of the body of this Ground Lease and Appendix A shall govern. In the case of any other conflict or inconsistency between or among the provisions of the body of this Ground Lease or any Appendix, the provision addressing the matter in more detail shall govern.
Section 15.8 Language . This Ground Lease shall be written in both the Chinese and English languages. Both languages shall have equal authenticity; provided , however , in the event of conflict between the different versions, the English language version shall control.
[Signature Page Follows]
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IN WITNESS WHEREOF , the parties have caused this Ground Lease to be executed by their duly authorized representatives as of the date first written above.
FORMOSA PETROCHEMICAL CORPORATION | ||
By: |
/s/ Tsao Mihn |
|
Tsao Mihn | ||
President | ||
For and on behalf of
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||
(KRATON FORMOSA POLYMERS CORPORATION) | ||
The Preparatory Office for
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||
By: |
/s/ Michael S. Wong |
|
Michael Wong | ||
Authorized Representative | ||
By: |
/s/ Hsi-Tse Li |
|
Hsi-Tse Li | ||
Authorized Representative |
[Signature Page to Ground Lease]
I hereby confirm that this Ground Lease has been ratified at a duly convened meeting or pursuant to a written consent of the
Board of
|
||
|
||
(KRATON FORMOSA POLYMERS CORPORATION) | ||
By: |
/s/ Michael S. Wong |
|
Michael Wong | ||
President |
[Signature Page to Ground Lease]
APPENDIX A
Definitions
Affiliate of any Person means any other Person directly or indirectly controlling, directly or indirectly controlled by or under direct or indirect common control with such Person. As used in this definition, the term control, controlling or controlled by means the possession, directly or indirectly, of the power either to (a) vote 50% or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such Person or (b) direct or cause the direction of the actions, management or policies of such Person, whether through the ownership of voting securities or interests, by contract or otherwise, excluding in each case, any lender of such Person or any Affiliate of such lender. Notwithstanding the foregoing, in no event shall Lessee be deemed to be an Affiliate of KP Investment or any of its Affiliates or Lessor or any of its Affiliates.
Applicable Law means any constitution, law, statute, ordinance, order, injunction, rule, regulation or Authorization of any Governmental Authority (excluding any such legislative, judicial or administrative body or instrumentality acting in any capacity as a lender, guarantor or mortgagee) applicable to a party or its Affiliate or the subject matter of this Agreement.
Approval Failure has the meaning set forth in Section 1.4(b) .
Arbitral Tribunal has the meaning set forth in Section 4.1 of Appendix C .
Assessor has the meaning set forth in Section 8.1 .
Authorizations means licenses, certificates, permits, orders, approvals, determinations, variances, franchises and authorizations from Governmental Authorities.
Board means the representatives of the Directors of Lessee comprised of three Kraton Directors Representatives and three FPCC Directors Representatives.
Business Day means a day of the year that is not a Saturday, Sunday or other day on which the banks are generally closed in the Republic of China.
Business Tax has the meaning set forth in Section 3.1 .
Construction Contractor means the Third Party construction contractor retained by Lessee to construct the Plant.
Country of Jurisdiction has the meaning set forth in Section 4.14 of Appendix C .
Default Rate means a per-annum rate of interest equal to the lesser of (a) LIBOR plus 1,000 or (b) the maximum rate of interest permitted to be charged by Applicable Law.
Delivery Date has the meaning set forth in Section 2.1 .
Appendix A-1
Directors means each of KP Investment and Lessor in its capacity as a director of Lessee.
Dispute has the meaning set forth in Section 2.1 of Appendix C .
Environmental Laws means any and all federal, state and local statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other restrictions of any Governmental Authority of the Republic of China relating to the environment, or to handling, storage, emissions, discharges, releases or threatened emissions, discharges or releases of Hazardous Materials into the environment, including ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment or disposal of any Hazardous Materials.
Expert has the meaning set forth in Section 5.1 of Appendix C .
Expert Matters has the meaning set forth in Section 5.2 of Appendix C .
First Party has the meaning set forth in Section 4.11(b) of Appendix C .
Force Majeure means any occurrence, whether of the kind herein enumerated or otherwise, that is not within the reasonable control of the Person claiming the right to delay performance on account of such occurrence including, to the extent that the foregoing standard is met, acts of God, acts of the public enemy, acts of a Governmental Authority, insurrections, wars or war-like action (whether actual and pending or expected), arrests or other restraints of government (civil or military), blockades, embargoes, strikes, lock-outs, labor unrest or disputes, unavailability of labor or materials, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, wash-outs, explosions, civil disturbance or disobedience, riot, sabotage, terrorism, threats of sabotage or terrorism.
FPCC means Formosa Petrochemical Corporation, a company limited by shares incorporated in the Republic of China and its permitted successors and assigns.
FPCC Directors Representative means any representative appointed to the Board by Lessor in its capacity as a Director of Lessee.
Governmental Authority means any foreign, federal, state or local governmental entity, authority or agency, court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof) having jurisdiction as to the matter in question.
Government Official means and includes (i) any officer or employee of a federal, regional or municipal government or any department, agency or instrumentality thereof; (ii) any officer or employee of a state-owned entity; (iii) any Person acting in an official capacity for or on behalf of a government, any department, agency of instrumentality thereof, or any state-owned entity; (iv) any officer or employee of a public international organization; (v) any candidate for a political office; or (vi) any political party or official thereof.
Ground Lease has the meaning set forth in the Preamble.
Appendix A-2
Hazardous Materials means (a) any substance, emission or material, including asbestos, now or hereafter defined as, listed as or specified in the laws of the Republic of China as a regulated substance, hazardous substance, toxic substance, pesticide, hazardous waste, hazardous material or any similar or like classification or categorization under any Environmental Law including by reason of ignitability, corrosivity, reactivity, carcinogenicity or reproductive or other toxicity of any kind, (b) any products or substances containing petroleum, asbestos or polychlorinated biphenyls or (c) any substance, emission or material determined to be hazardous or harmful; provided that Hazardous Materials shall exclude the feedstocks used to produce HSBC, including butadiene and hydrogen, as well as HSBC or any other product produced by the Plant.
HSBC means hydrogenated styrenic block copolymers and related products of the type SEBS and SEPS.
HSE Policy means the health, safety and environmental policy of Lessee included in Exhibit E to the Shareholder Agreement.
IDB means the Industrial Development Bureau.
ICC has the meaning set forth in Section 3.5 of Appendix C .
ICC Centre has the meaning set forth in Section 5.3(e) of Appendix C .
ICC Rules has the meaning set forth in Section 3.5 of Appendix C .
IDB Portion has the meaning set forth in Section 1.2(a) .
Indemnitee has the meaning set forth in Section 13.3 .
Indemnitor has the meaning set forth in Section 13.3 .
Industrial Park Rules has the meaning set forth in Section 1.2(c) .
International Anti-Bribery Convention has the meaning set forth in Section 2.1 of Appendix D .
KFPC has the meaning set forth in Exhibit 4 .
KP Investment means KP Investment BV, a company organized under the laws of the Netherlands and its permitted successors and assigns.
Kraton Directors Representative means any representative appointed to the Board of Project Company by KP Investment in its capacity as a Director of Lessee.
Lease Fee has the meaning set forth in Section 3.1 .
Lease Option has the meaning set forth in Section 1.2(b) .
Lessee has the meaning set forth in the Preamble.
Appendix A-3
Lessee Default has the meaning set forth in Section 12.1 .
Lessor has the meaning set forth in the Preamble.
Lessor Default has the meaning set forth in Section 12.2 .
Liabilities means any and all liabilities, obligations and commitments of any nature whatsoever, whether based on common law or statute or arising under written contract or otherwise, known or unknown, fixed or contingent, real or potential, tangible or intangible, now existing or hereinafter arising.
LIBOR means the London Inter-Bank Offering Rate for a month as indicated in the Telerate page 3750 at 11:00 a.m. (London time) on the first day of the applicable period or, if commercial banks are not open for international operations in London on such day, the rate on the next day on which banks in London are open for international operations; provided that LIBOR shall be adjusted on the 31st day of each applicable period to the then-current rate as provided above.
Lien means any mortgage, lien, pledge, charge or security interest, any lien for taxes or assessments, builder, mechanic, warehouseman, materialman, contractor, workman, repairman or carrier lien or other similar liens.
Losses means all suits, actions, Liabilities, legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character, including reasonable attorneys fees and expenses.
Mailiao Industrial Park means the Formosa Plastics Group Industrial Zone located in Mailiao, Yun Lin County, Republic of China.
Multi-Party Arbitration has the meaning set forth in Section 7.1 of Appendix C .
Notice has the meaning set forth in Section 4 of Appendix B .
Notice of Dispute has the meaning set forth in Section 2.2 of Appendix C .
OFAC has the meaning set forth in Section 3.5 of Appendix D .
Option Period has the meaning set forth in Section 1.6 .
Option Plant Site has the meaning set forth in Section 1.6 .
Organizational Documents means, with respect to any Person at any time, such Persons certificate or articles of incorporation, by-laws, memorandum and articles of association, certificate of formation of limited liability company, limited liability company agreement and other similar organizational or constituent documents, as applicable, in effect at such time.
Original Quality Level has the meaning set forth in Section 8.1.
Other Dispute has the meaning set forth in Section 7.1 of Appendix C .
Appendix A-4
party and parties means the signatories to this Ground Lease.
Permitted Purposes has the meaning set forth in Section 1.2(c) .
Person means any individual, firm, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity or organization.
Plant means the facility owned by Lessee that will be situated on the Plant Site for the production of HSBC and related products.
Plant Site means the portion of the Mailiao Industrial Park described on the Plant Site Map, and on which the Plant will be located.
Plant Site Map has the meaning set forth in Section 1.1 .
Pre-Arbitral Referee Procedure has the meaning set forth in Section 4.3 of Appendix C .
Prohibited Person has the meaning set forth in Section 3.5 of Appendix D .
Project Company
means
, also known as Kraton Formosa Polymers Corporation, a limited liability company organized in the Republic of China.
reasonable best efforts means best efforts consistent with reasonable commercial practice and without payment or incurrence of unreasonable expense or the requirement to engage in litigation.
ROC Environmental Standards has the meaning set forth in Section 8.1 .
Second Party has the meaning set forth in Section 4.11(b) of Appendix C .
Shareholder Agreement
means the Shareholder Agreement of
, also known as Kraton Formosa Polymers Corporation, dated as of the date hereof, by and between KP Investment and Lessor, as the same may be amended, supplemented, modified, renewed or extended from time to time by
agreement of the parties thereto.
Supplier has the meaning set forth in Exhibit 4 .
Taxes means all taxes or similar charges, fees, levies or other assessments imposed by any Governmental Authority, including income, gross receipts, excise, property, sales, use, transfer, payroll, license, ad valorem, value added, withholding, social security, national insurance (or other similar contributions or payments), franchise, severance and stamp taxes (including any interest, fines, penalties or additions attributable to, or imposed on or with respect to, any such taxes, charges, fees, levies or other assessments).
Third Party means any Person other than KP Investment, Lessee or Lessor or an Affiliate of any of them.
Appendix A-5
Transaction Documents means each agreement executed and delivered in connection with the transactions contemplated by the Shareholder Agreement, including the agreements listed in Appendix A-1 to the Shareholder Agreement.
Transfer Option has the meaning set forth in Section 1.2(b) .
U.S. Anti-Bribery Laws has the meaning set forth in Section 2.1 of Appendix D .
Utilities Infrastructure has the meaning set forth in Section 5.1 .
Appendix A-6
APPENDIX B
Miscellaneous Provisions
Section 1. Agreement Interpretation . In construing this Agreement: (a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Agreement and not as an aid to construction and shall not be interpreted to limit or otherwise affect the provisions of this Agreement or the rights and other legal relations of the parties hereto; (b) no consideration shall be given to the fact or presumption that either party had a greater or lesser hand in drafting this Agreement; (c) examples shall not be construed to limit, expressly or by implication, the matter they illustrate; (d) the word includes and its syntactic variants mean, unless otherwise specified, includes, but is not limited to and corresponding syntactic variant expressions; (e) words such as herein, hereby, hereafter, hereof, hereto and hereunder refer to this Agreement as a whole and not to any particular article, section or provision of this Agreement; (f) whenever the context requires, the plural shall be deemed to include the singular, and vice versa; (g) each gender shall be deemed to include the other gender, when such construction is appropriate; (h) all of the Appendices, Exhibits and Schedules referred to in this Agreement are part of this Agreement and each Appendix, Exhibit and Schedule is hereby incorporated into the body of the Agreement as if set forth in full therein; (i) references to a Person are also to its permitted successors and permitted assigns; (j) all references in this Agreement to Appendices, Exhibits, Schedules, Articles and Sections refer to the corresponding Appendices, Exhibits, Schedules, Articles and Sections of this Agreement unless expressly provided otherwise; (k) unless expressly stated otherwise, the word or is not exclusive; (l) all references to US$ or Dollars means United States Dollars, and all references to NT$ means New Taiwan Dollars; and (m) unless otherwise expressly provided herein, any agreement, instrument or Applicable Law defined or referred to herein means such agreement, instrument or Applicable Law as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of Applicable Laws) by succession of comparable successor Applicable Laws and reference to all attachments thereto and instruments incorporated therein.
Section 2. Negotiation and Preparation Costs . Each party shall bear the costs and expenses incurred by it in connection with the negotiation, preparation and execution of this Agreement and other documents referred to herein.
Section 3. Representations and Warranties . Each party hereby represents and warrants that each of the following statements is true, accurate and not misleading as of the date of execution and the date of ratification of this Agreement:
(a) Organization and Authority . It has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, with all necessary power and authority to enter into, deliver and perform all its obligations under this Agreement.
(b) Due Authorization; Enforceability . This Agreement has been duly authorized and constitutes the legal, valid, and binding obligations of it, enforceable against it in accordance with its terms. It has the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and to perform its obligations under this Agreement.
Appendix B-1
(c) No Conflict . Neither the execution and delivery of this Agreement nor the consummation or performance of any of the transactions contemplated by this Agreement will, directly or indirectly (with or without notice or lapse of time) (1) contravene, conflict with, or result in a violation of (i) any provision of its Organizational Documents or (ii) any resolutions adopted by its board of directors or its stockholders or other governing body or (2) contravene, conflict with, or result in a violation of, or give any Governmental Authority or other Person the right to challenge any of the transactions contemplated by this Agreement or to exercise any remedy or obtain any relief under any Applicable Law or any order to which it or its Affiliates may be subject.
(d) Consents and Notices . It is not required to give any notice to or obtain any approval, consent, ratification, waiver or other authorization of any Person (including any Authorization) in connection with the execution and delivery of this Agreement or the consummation or performance of any of the transactions contemplated by this Agreement.
Section 4. Notices . Wherever provision is made for the giving or issuance of any notice, instruction, consent, approval, certificate or determination by any Person (each, a Notice ), unless otherwise specified, such communication shall be in writing and shall not be unreasonably withheld or delayed. All Notices shall be given to a party at the physical address or facsimile number specified on Schedule 1 to this Agreement or as such party shall at any time otherwise specify by like notice to each other party to this Agreement. Each such Notice shall be effective (a) if given by facsimile, at the time such appropriate confirmation of receipt is received by the sender (or, if such time is not during regular business hours of a Business Day, at the beginning of the next such Business Day), and (b) if given by mail or courier, upon receipt or refusal of service at the address specified for each party on Schedule 1 to this Agreement.
Section 5. Specific Performance . The parties acknowledge and agree that in the event of an actual or threatened breach of the covenants and agreements of the parties set forth in this Agreement, or due to the length of time required to resolve a dispute pursuant to the dispute resolution procedures applicable to this Agreement, monetary damages may be inadequate to fully remedy the actual or threatened injury. Therefore, without limiting any other remedy available under equity, at law, under this Agreement or pursuant to the dispute resolution procedures applicable to this Agreement, all parties expressly agree that an injunction, restraining order, specific performance and other forms of equitable relief shall be available to the non-breaching party, and the breaching party shall not claim as a defense thereto that there is an adequate remedy at law or through the dispute resolution process. The party seeking an injunction, retraining order, specific performance or other equitable relief shall not be required to post a bond unless required by Applicable Law.
Section 6. No Consequential or Special Damages . Except as otherwise expressly provided in this Agreement, no party nor any of its Affiliates shall be liable under this Agreement or under any other document entered into or otherwise for lost profits or exemplary, special, punitive, indirect, remote, speculative or consequential damages (including lost profits, opportunity costs or damages based upon multiples of earnings or other financial or operational measures), whether in tort (including negligence or gross negligence), strict liability, by contract or statute, and whether foreseeable or unforeseeable.
Appendix B-2
Section 7. Indemnification Procedures . All claims for indemnification under this Agreement shall be asserted and resolved in accordance with Section 7 of Appendix B to the Shareholder Agreement.
Section 8. Complete Agreement; Disclaimer . This Agreement together with each other Transaction Document to which the parties are signatory, taken together, constitute the entire agreement of the parties relating to the subject matter of this Agreement and supersede all prior contracts, agreements or understandings with respect to the subject matter hereof and thereof, both oral or written. EACH PARTY AGREES THAT (A) THE OTHER PARTY (AND THEIR AGENTS AND REPRESENTATIVES) HAS NOT MADE ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT TO OR WITH SUCH PARTY RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF OTHER THAN AS REDUCED IN WRITING IN THIS AGREEMENT OR IN ANOTHER EXECUTED AND DELIVERED TRANSACTION DOCUMENT, AND (B) SUCH PARTY HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT TO OR WITH THE OTHER PARTY RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF, OTHER THAN THOSE REDUCED IN WRITING IN THIS AGREEMENT OR IN ANOTHER EXECUTED AND DELIVERED TRANSACTION DOCUMENT.
Section 9. Public Announcements . No party shall, except as required by Applicable Law or the rules of any recognized national stock exchange, cause any public announcement to be made regarding this Agreement. In the event that a party shall be required to cause such a public announcement to be made pursuant to any Applicable Law or the rules of any recognized national stock exchange, it shall use commercially reasonable efforts to provide the other party at least two Business Days prior written notice of such announcement.
Section 10. Time is of the Essence; Performance Extended to Next Business Day . Time is of the essence in each and every provision of this Agreement. Notwithstanding any deadline for payment, performance, notice or election under this Agreement, if such deadline falls on a date that is not a Business Day, then the deadline for such payment, performance, notice or election will be extended to the next succeeding Business Day.
Section 11. Assignment . This Agreement shall bind and enure to the benefit of the parties, their respective successors and permitted assigns. Except as expressly otherwise provided in this Agreement, no party may assign or transfer its interest or obligations herein without the prior written consent of the other party, which may be withheld in such partys sole discretion.
Section 12. Amendment . This Agreement may not be amended, modified or altered except by an instrument in writing signed on behalf of each party.
Section 13. Severability . In the event that any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the parties shall negotiate an equitable adjustment to the provisions of this Agreement with a view to effecting, to the extent possible, the original purpose and intent of this Agreement, and the validity and enforceability of the remaining provisions shall not be affected thereby.
Appendix B-3
Section 14. Waiver; Cumulative Rights and Remedies . Any of the terms, covenants, representations, warranties or conditions hereof may be waived only by a written instrument executed by or on behalf of the party waiving compliance. The failure of a party at any time to strictly enforce any provision of this Agreement shall in no way affect its right thereafter to require performance thereof, nor shall the waiver of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of any such provision or as a waiver of the provision itself. Unless otherwise specified herein, the rights and remedies provided in this Agreement are cumulative and the exercise of any one right or remedy by any party shall not preclude or waive its right to exercise any or all other rights or remedies.
Section 15. Interest Calculation . Except as otherwise expressly provided in this Agreement, interest shall accrue on any unpaid and outstanding amount from the time such amount is due and payable through the date upon which such amount, together with accrued interest thereon, is paid in full. Interest shall accrue at a per annum rate equal to the Default Rate, compounded quarterly.
Section 16. Further Assurances . From time to time, each party agrees to promptly execute and deliver such additional documents, and will provide such additional information and assistance, as any party may reasonably require to effect the terms of this Agreement.
Section 17. Counterparts . This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement to which no party shall be bound until all parties have executed a counterpart. Signatures transmitted by facsimile or as emailed PDF copies shall be binding as originals so long as the Agreement is transmitted in its entirety, and each party hereby waives any defenses to the enforcement of the terms of this Agreement sent by facsimile or emailed PDF based upon the manner of transmission or form of signature (electronic, facsimile or ink original).
Appendix B-4
APPENDIX C
Dispute Resolution Procedures
Section 1. [Reserved]
Section 2 . Generally; Notice of Dispute and Response .
2.1 The parties shall resolve all disputes, controversies and claims arising out of, relating to or in connection with this Agreement or the operations carried out under this Agreement, including the construction, existence, validity, enforceability, enforcement, breach and termination of this Agreement (a Dispute ), exclusively in accordance with this Appendix C .
2.2 Either party may notify the other party in writing of any Dispute (a Notice of Dispute ). Such Notice of Dispute shall (a) specify the nature of such Dispute, (b) include a statement of such partys position with regard to such Dispute and (c) identify whether such Dispute is an Expert Matter.
Section 3. Settlement of Disputes by Negotiation .
3.1 Within five Business Days after the receipt by a party of a Notice of Dispute, the parties shall schedule a meeting to be held at a place as the parties may mutually agree. Such meeting shall be held within 10 Business Days after the receipt by a party of a Notice of Dispute, and may be held by video conference or telephone conference. The meeting shall be attended by senior management level personnel of each of the parties who have not previously been directly engaged in asserting or responding to such Dispute. Such persons shall attempt in good faith and a commercially reasonable manner to negotiate a resolution of such Dispute, which negotiations may entail the involvement of, and meetings attended by, additional senior management level personnel senior to such persons.
3.2 If such senior management level personnel shall not have negotiated a resolution to such Dispute within 60 days after such Notice of Dispute was delivered, then the Chief Executive Officer, or a senior executive officer designated by the Chief Executive Officer (or equivalent) with full decision-making authority with respect to such Dispute and the dispute resolution process, of each ultimate parent company of each of the parties shall meet at a mutually agreed location, and such Persons shall attempt in good faith and a commercially reasonable manner to negotiate a resolution of such Dispute before these procedures may be deemed to have been exhausted.
3.3 If such Dispute is resolved pursuant to Section 3.1 or 3.2 of this Appendix C , one or more parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Each party shall have a commercially reasonable time in which to take such actions.
3.4 All negotiations pursuant to Sections 3.1 through 3.3 of this Appendix C , including any Notice of Dispute, shall be confidential and shall be treated as compromise and settlement negotiations, and no oral or documentary representations made by either party during such negotiations shall be admissible for any purpose in any subsequent proceedings.
Appendix C-1
3.5 If any Dispute is not resolved following negotiation pursuant to Sections 3.1 through 3.3 of this Appendix C , the parties shall submit the matter to settlement proceedings under the ADR Rules of the International Chamber of Commerce (the ICC ) in force as from 1 July 2001 (the ICC Rules ) or, if such ICC Rules are no longer in force, such rules of the ICC that replaced the ICC Rules, or if no such rules exist, as agreed by the parties.
Section 4. Resolution of Disputes by Arbitration .
4.1 ICC Rules Apply . Except in the case of an Expert Matter or as provided in Section 4.2 of this Appendix C , if any Dispute has not been settled pursuant to Section 3 of this Appendix C within 60 days following the filing by a party of a Request for ADR under the ICC Rules (or within such other period as the parties may agree in writing), such Dispute shall be finally settled under the ICC Rules by three arbitrators appointed in accordance with the ICC Rules (an Arbitral Tribunal ), which arbitration shall be administered by the ICC. Each arbitrator shall be fluent in the English language. To the extent that the ICC Rules are in conflict with any provision of this Section 4 , the provisions of this Section 4 shall prevail.
4.2 Disputes Before Sole Arbitrator . A Dispute shall be referred to a sole arbitrator if (a) the amount in dispute (representing the aggregate of the claim, counterclaim and any set-off defense) does not exceed US$5,000,000, (b) the parties so agree or (c) it is a case of exceptional urgency. In such case, the award shall be made within six months after the date on which the sole arbitrator is appointed; provided that such time limit may be extended if (i) the parties agree or (ii) the sole arbitrator or the International Court of Arbitration of the ICC determine that the interest of justice so requires. The sole arbitrator shall use his best efforts to issue the award within such time period. Failure to adhere to such time limit shall not be a basis for challenging the award.
4.3 Pre-Arbitral Referee Procedure . Each party shall have the right to have recourse to, and shall be bound by, the pre-arbitral referee procedure of the ICC in accordance with its 1990 Rules for a Pre-Arbitral Referee Procedure (the Pre-Arbitral Referee Procedure ).
4.4 Place of Arbitration . The place of arbitration shall be Singapore or at such other place as the parties shall mutually agree in writing.
4.5 Language . The arbitration proceedings shall be conducted in the English language (provided that any person participating in the arbitration may speak through a translator) and all written submissions, awards and the reasons supporting them shall be in English. Any materials submitted in a language other than English shall be accompanied by a certified English translation.
4.6 Performance Not Suspended . Subject to any provision of this Agreement to the contrary and any provisional order to the contrary, each party shall continue to perform its obligations under this Agreement during the continuation of the resolution of any Dispute pursuant to this Section 4 .
4.7 Costs of Arbitration . Each party shall, in the first instance, bear its own costs and fees of, and occasioned by, the arbitration (including attorneys fees) and shall share the advance on costs and fees in such proportion as shall be provisionally determined by the ICC.
Appendix C-2
Thereafter, the parties costs and the costs of the arbitration (including attorneys fees and other arbitration costs of a party) shall be borne in the manner determined by the relevant Arbitral Tribunal. In the absence of any such determination by such Arbitral Tribunal, the situation as in the first instance shall continue.
4.8 Waiver . Resolution of a Dispute by arbitration is final, and each party hereby waives any right of appeal to any court or tribunal of competent jurisdiction to the fullest extent permitted by the Applicable Law; provided that all parties retain whatever rights they may have to challenge the enforcement of any decision or award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the applicable articles of the ROC Code of Civil Procedure and arbitration law of the Republic of China.
4.9 Authority of Arbitral Tribunals . Each Arbitral Tribunal shall have full authority to award any remedy or relief proposed by any party, including damages, set-offs and equitable relief, such as a declaratory judgment, specific performance of any obligation created under this Agreement, the issuance of an injunction, requiring the furnishing of security or guarantees and requiring the preservation of any thing or right under the control of a party, and awarding damages for the failure of any party to respect an Arbitral Tribunals orders to that effect; provided that each Arbitral Tribunal is prohibited from awarding punitive or exemplary damages.
4.10 The Award . The award shall be in writing and shall state the reasons supporting the award. The arbitrators shall make the award and any other decisions or rulings strictly according to the Applicable Law and not ex aequo et bono or as amiable compositeur, and shall not decide such Dispute by reference to any other doctrine or practice that would permit them to avoid this Agreement or the Applicable Law of this Appendix C .
4.11 Monetary Awards .
(a) Any monetary award shall be made in Dollars and shall be payable free of any Tax, withholding, deduction or offset. If a party is required to withhold or otherwise account for any such Tax, withholding, deduction or offset, such party shall:
(i) pay and bear such Tax, withholding, deduction or offset; and
(ii) ensure that the other party receives an amount equal to the amount of such award without deduction for any such Tax, withholding, deduction or offset.
(b) If a party (the First Party ) makes a Tax deduction in respect of a monetary award payment to the other party (the Second Party ) and a corresponding Tax payment to any taxing authority or Governmental Authority and the Second Party has obtained a refund of such Tax payment, or used such Tax payment as a credit against its Tax liabilities, then the Second Party shall reimburse the First Party the amount of such Tax payment as will leave the Second Party (after such reimbursement) in no better or worse position than it would have been in had no Tax payment been required.
Appendix C-3
(c) An Arbitral Tribunal shall include pre-award and post-award interest (including compound interest) at commercial rates from the date of any breach until the date such award is paid in full, including interest due. Any costs, expenses and fees incident to enforcing any award (including attorneys fees) shall, to the maximum extent permitted by the Applicable Law, be charged against the party against whom such enforcement is sought.
4.12 Privileges . Legal professional privilege, including privileges protecting attorney-client communications and attorney work product of each party from compelled disclosure or use in evidence, as recognized by the law governing each partys relationship with its counsel, shall apply to and be binding in any arbitration proceeding conducted under this Section 4 .
4.13 Confidentiality . Each party shall ensure that it and its shareholders and Affiliates and their respective Affiliates, officers, directors, employees, counsel, consultants and expert witnesses of any thereof and the Arbitral Tribunal, shall maintain as confidential the fact of any proceedings described in this Appendix C , including arbitration proceedings, the arbitral award, the Pre-Arbitral Referee Procedure, any settlement agreement or order, filings or submissions exchanged or produced during any such proceedings and briefs or other documents prepared in connection with such proceedings, except:
(i) to the extent necessary to enforce this Section 4 or any arbitral award;
(ii) to enforce other rights of the parties hereunder;
(iii) pursuant to an order of or a subpoena issued by a court of competent jurisdiction;
(iv) as required by Applicable Law;
(v) as required by the rules of any stock exchange on which the shares of any party or any shareholder or Affiliate thereof (or any Affiliate of any of the foregoing) are listed or are in the process of being listed; or
(vi) pursuant to an order in connection with the Pre-Arbitral Referee Procedures with proper notice to the parties and other relevant Persons and tribunals.
4.14 Submission to Jurisdiction; Interim and Other Relief . Each party hereby submits to the exclusive jurisdiction of the English (the Country of Jurisdiction ) courts in any action, suit or proceeding with respect to the enforcement of the agreement to arbitrate in this Section 4 and the non-exclusive jurisdiction of such courts with respect to the enforcement of any award thereunder. On or prior to the execution and delivery of this Appendix C , each party shall have (a) appointed an agent to accept, on its behalf, service of process in the Country of Jurisdiction and (b) received evidence of such agents acceptance of such appointment for the term of this Agreement. Each party agrees not to plead or claim in any Country of Jurisdiction court that any such action or proceeding has been brought in an inconvenient forum. Each party agrees that the Country of Jurisdiction courts shall have the
Appendix C-4
power to provide any necessary interim relief prior to the formation of an Arbitral Tribunal. In addition, any party to the arbitration may apply to any court of competent jurisdiction for:
(i) a provisional or conservatory order, including a preliminary injunction, in aid of the arbitration proceeding before the appointment of the arbitrators is completed; and
(ii) an order of enforcement of provisional remedies granted by an Arbitral Tribunal,
and an application for such an order shall not be deemed a violation or waiver of this Agreement. The parties waive, to the fullest extent permitted by Applicable Laws, any other right to apply to any court of competent jurisdiction for provisional remedies, whether under Article 23 of the ICC Rules (or any successor rule) or otherwise.
Section 5 . Resolution of Disputes by an Expert .
5.1 Use of an Expert . Whenever a Dispute arises that involves an Expert Matter, such Dispute shall be exclusively resolved by an expert appointed as described in this Section 5 (an Expert ) in accordance with the procedures set forth in this Section 5 .
5.2 Expert Matters . The following matters ( Expert Matters ) shall be determined by an Expert:
(a) the failure of the parties to agree on a replacement index or similar reference;
(b) the interpretation of test data and the results thereof;
(c) the causation of equipment failure; and
(d) such other matters as the parties may agree;
provided that Expert Matters shall not include a determination of the consequences of any of the foregoing under the terms of this Agreement.
5.3 Appointment of an Expert .
(a) An Expert:
(i) may be a Person;
(ii) shall be generally recognized as an expert in a field of expertise relevant to such Dispute that is the subject of the determination;
(iii) shall not be a current or former employee or agent of either party or any of its shareholders or Affiliates or any of their respective Affiliates; and
(iv) shall not have any conflict of interest.
Appendix C-5
(b) If a Notice of Dispute indicates that such Dispute involves an Expert Matter, the party receiving such Notice of Dispute shall, within 30 days after receipt of such Notice of Dispute, agree or deny that such Dispute is an Expert Matter. If a Notice of Dispute does not indicate that it involves an Expert Matter, but the party receiving such Notice of Dispute believes that such Dispute involves an Expert Matter and wants to have it resolved by an Expert pursuant to this Section 5 , such party shall, within 30 days after receipt of the Notice of Dispute, send a notice to the other party stating that it believes that such Dispute involves an Expert Matter and wants to have it resolved by an Expert. Within 14 days after receipt by the other party of such notice, such other party shall agree or deny in writing that such Dispute is an Expert Matter.
(c) If the parties cannot agree that a Dispute is an Expert Matter, an Arbitral Tribunal shall determine whether such Dispute is an Expert Matter in accordance with the procedures set forth in Section 4 of this Appendix C . If such Arbitral Tribunal determines that such Dispute:
(i) is an Expert Matter, such Dispute shall be resolved pursuant to this Section 5 ; or
(ii) is not an Expert Matter, such Dispute shall be resolved pursuant to arbitration in accordance with Section 4 of this Appendix C .
(d) The party that does not prevail in this determination of whether such Dispute is an Expert Matter shall bear all of the costs of such arbitration, the arbitrators fees and the parties attorneys fees through the date of that determination by such Arbitral Tribunal.
(e) For purposes of selecting an Expert, each party shall create a list of up to three proposed Experts, including the credentials of each nominee, and provide a copy thereof to the other party within 30 days after either (i) the parties agreement that such Dispute is an Expert Matter or (ii) the determination of an Arbitral Tribunal that such Dispute is an Expert Matter. If the parties are unable to select a mutually agreeable Expert from among the proposed Experts within 10 Business Days after the exchange of lists, either party may request the ICC International Centre for Expertise (the ICC Centre ) to make the selection of the Expert in accordance with the provisions for appointment of experts under the ICCs Rules for Expertise. The ICC Centre shall make the selection as promptly as possible and may take such independent advice as it deems fit.
5.4 Acceptance of the Appointment . Upon a Person being agreed or selected as aforesaid to function as an Expert, the parties shall forthwith notify such Person in writing of such selection and the determination being sought, and shall request, inter alia, a covenant that such Expert will not during the term of the appointment accept any duty or acquire or agree to acquire any interest that materially conflicts with or might materially conflict with such Experts function under such appointment. The parties shall request the selected Person to confirm, within 10 Business Days, acceptance of the appointment as Expert on the terms proposed and to disclose any existing interest or duty that conflicts or may conflict with such Persons function as Expert under such appointment.
Appendix C-6
5.5 Appointment in Default . If the selected Person shall either be unwilling or unable to accept such appointment as Expert on the terms proposed or shall not have confirmed acceptance of such appointment within the 10-Business Day period specified in Section 5.4 of this Appendix C , then, unless the parties are able to agree within 15 Business Days after receiving notification thereof upon (a) different terms with such Person from those previously proposed or (b) the selection of a different Expert, then the matter shall be referred to the ICC Centre in accordance with Section 5.3(e) of this Appendix C , which shall be requested to make an appointment or (as the case may be) a further appointment and the process shall be repeated until a person is found who accepts the appointment as Expert.
5.6 Confidentiality . It shall be a requirement of each Experts appointment that such Expert shall enter into a confidentiality undertaking with the parties governing the matter in dispute.
5.7 Procedure .
(a) After consulting with the parties, an Expert shall establish the procedures to be applied, including the timing and number of written submissions, the timing and nature of any oral hearings, and the circumstances governing any presentation of evidence or witnesses; provided that there shall be no ex parte communications or proceedings.
(b) In making any determination, an Expert shall consider the information provided by the parties and shall conduct any further reasonable investigations as are necessary and appropriate in light of the surrounding facts and circumstances. If an Expert conducts any such investigation, it shall notify each party thereof and each party shall have a reasonable opportunity to address such investigation. An Expert may, at any time prior to making a determination, request clarification or further information from the parties.
(c) An Expert shall be entitled to obtain such independent professional, secretarial and/or technical advice and assistance as may be reasonably required.
(d) The Expert determination process, both written and oral, shall be conducted in the English language.
5.8 Time for Rendering an Expert Determination .
(a) An Expert shall render a determination within 180 days following its acceptance of appointment pursuant to Section 5.4 or 5.5 of this Appendix C . Such period of 180 days may be extended by agreement of the parties, which agreement shall not be unreasonably withheld.
(b) If an Expert does not render a determination within the relevant time period specified in Section 5.8(a) of this Appendix C , then:
(i) the parties may agree to extend such deadline; or
Appendix C-7
(ii) if the parties cannot agree on an extension, another Expert shall be appointed pursuant to the procedure described in this Section 5 and, on acceptance of such appointment by the new Expert, the appointment of the original Expert shall cease; provided that if the previous Expert shall have rendered a decision prior to the new Experts entering into a contract of appointment, then (A) such decision of such previous Expert shall (subject always to Section 5.9 of this Appendix C ) be binding upon the parties and (B) the parties shall withdraw instructions (if any) previously extended to the new Expert.
5.9 Final and Binding Determination . An Experts determination shall be in writing and shall be final and binding on the parties and shall not be subject to challenge except in the event of:
(i) fraud;
(ii) failure by such Expert to disclose any relevant conflicting interest or duty;
(iii) breach by such Expert of the covenant specified in Section 5.4 of this Appendix C ;
(iv) the challenging party being denied due process;
(v) the selection of such Expert or the procedure followed by such Expert was not in accordance with this Section 5 ; or
(vi) the recognition or enforcement of such determination would be contrary to the public policy of the Country of Jurisdiction.
5.10 Costs of an Expert Determination . Each party shall bear its own costs and expenses with respect to any Expert determination. The costs and expenses of an Expert, including an Experts secretarial and administrative costs and expenses, any independent advisors to such Expert retained by such Expert in connection with a determination and any costs of such Experts appointment if such Expert is appointed by the ICC Centre, shall be borne equally by each party.
5.11 General . An Expert shall not be deemed to be an arbitrator or mediator but shall render its determination as an expert.
5.12 Failure to Comply with an Expert Determination . Each party shall comply with an Experts determination. If a party fails to comply with such determination, the other party may initiate arbitral proceedings pursuant to Section 4 of this Appendix C ; provided that the arbitral proceedings shall be limited to reviewing the Experts determination for the considerations set forth in Section 5.9 of this Appendix C . The determination of the Arbitral Tribunal shall be an arbitral award for all purposes, including enforcement.
Appendix C-8
Section 6. Consolidation of Disputes Under this Agreement .
6.1 If, with regard to two or more Disputes arising out of or in connection with this Agreement, (a) the subject matters of such Disputes involve common questions of law or fact or (b) the independent resolution of each such Dispute could result in conflicting awards or obligations, such Disputes may be consolidated in a single proceeding in accordance with the ICC Rules. If such arbitrations are consolidated and more than one Arbitral Tribunal has already been established, the first Arbitral Tribunal so established shall serve as the Arbitral Tribunal for the consolidated arbitration.
6.2 Within 30 days following any final decision by such Arbitral Tribunal that such proceedings should be consolidated, each party shall withdraw or move to dismiss any proceeding to which it is a party that will be resolved in such consolidated arbitration.
6.3 Notwithstanding anything in this Section 6 to the contrary, no arbitration proceeding may be consolidated (or dismissed on the basis of this Section 6 ) after evidentiary hearings in such proceeding have commenced.
Section 7. Multi-Party Arbitration .
7.1 Subject to Section 7.3 of this Appendix C , Project Company may bring in a single consolidated arbitration, or request the consolidation of any pending arbitration proceedings, in accordance with the ICC Rules, to resolve any dispute, claim or controversy between Project Company and any party under any other Transaction Document (each such dispute, an Other Dispute ) with any Dispute referred, or to be referred, to arbitration under Section 4 of this Appendix C (each consolidated arbitration, a Multi-Party Arbitration ), if (a) the subject matter of such Dispute and Other Dispute involve common questions of law and fact or (b) the independent resolution of such Dispute and Other Dispute could result in conflicting awards or obligations. If such arbitrations are consolidated and more than one (1) arbitral tribunal has been established:
(i) the first arbitral tribunal so established shall serve as the arbitral tribunal for the Multi-Party Arbitration; and
(ii) the other arbitral tribunal shall be divested of its authority in respect of such disputes.
7.2 Any Multi-Party Arbitration conducted pursuant to the terms of this Appendix C shall be conducted pursuant to the terms and conditions of Section 4 of this Appendix C mutatis mutandis to each dispute to be resolved in such Multi-Party Arbitration.
7.3 Within 30 days following any final decision by such Arbitral Tribunal that such proceedings should be consolidated, each party shall withdraw or move to dismiss any proceeding to which it is a party that will be resolved in the Multi-Party Arbitration; provided that Owner shall not be required to withdraw or dismiss any proceeding or submit any Dispute for resolution unless all parties to such Multi-Party Arbitration agree that Section 7.1 of this Appendix C shall apply thereto.
7.4 Notwithstanding anything in this Section 7 to the contrary, no arbitration proceeding may be consolidated (or dismissed on the basis of this Section 7 ) after evidentiary hearings in such proceeding have commenced.
Section 8. Survival . This Appendix C shall survive the expiration or termination of this Agreement.
Appendix C-9
APPENDIX D
Ethical Business Practices
Section 1. [Reserved]
Section 2. Overview .
2.1 Each party believes and expects that it will maintain a pattern of ethical conduct and avoid any activity that might result in a violation of any Applicable Law, including any thereof related to anticompetitive activities, anticorruption and antibribery, such as the U.S. Foreign Corrupt Practices Act of 1977, as amended, Mail Fraud Act, Wire Fraud Act and Travel Act and various U.S. State laws that may be applicable to a party or its contracting activities (such U.S. Federal and State laws, collectively, U.S. Anti-Bribery Laws ), the U.K. Bribery Act, Republic of China anti-bribery laws, the Netherlands anti-bribery laws or any other applicable anti-bribery laws, including laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the International Anti-Bribery Convention ), that prohibit the same or similar activities that are prohibited under the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.
2.2 Each party represents and warrants that in performing the activities contemplated under this Agreement, it and its officers, directors, employees, agents and other representatives acting on its behalf will comply with the standards of business practice and conduct set forth in the Code of Conduct of Kraton Performance Polymers, Inc. and Kraton Polymers LLC currently in effect, a copy of which has been made available to all parties. Each party represents and warrants that it will promptly review and comply with updates of such Code provided to FPCC by Kraton Performance Polymers, Inc.
2.3 Each party represents and warrants that no funds or other assets that it will contribute to, or use in furtherance of the performance of this Agreement, are or will be the proceeds of any unlawful activity in any applicable jurisdiction.
Section 3. Proscribed Payments .
3.1 No officer, director, employee, shareholder, agent or any other representative acting on behalf of either party or of any Affiliate or subcontractor of a party shall give to or receive from any Person any commission, fee, rebate, gift or entertainment in connection with the performance by it or its Affiliates under this Agreement, or enter into any business arrangement with any Person other than as provided in this Agreement or another Transaction Document, without prior written notification thereof to the other party.
3.2 Each party affirms that neither it nor any of its officers, directors, employees, shareholders, agents or other representatives acting on its behalf has, directly or indirectly, made, offered, promised or authorized, and agrees that neither it nor any of its officers, directors, employees, shareholders, agents or other representatives acting on its behalf shall, make, offer, promise or authorize, in connection with the performance by it or its Affiliates under this Agreement or in connection with any other business transactions involving a party, any payment, gift, promise or anything of value, whether directly or through any other Person, to or for the use or benefit of any Government Official for the purpose of (a) influencing any act or decision of any such Government Official, including a decision to fail to perform his official functions, (b) inducing any such official to do or omit to do any act in
Appendix D-1
violation of the lawful duty of such official or (c) inducing any such Government Official to use his influence with any government, department, agency or instrumentality in order to assist any of the parties in obtaining or retaining business with, or directing business to any Person or otherwise securing for any Person an improper advantage. Upon violation of this Section 3.2 , the other party may, at its sole option, terminate this Agreement at any time and, notwithstanding any other provision of this Agreement, pay no compensation or reimbursement to any other party to this Agreement whatsoever for any work or services performed under this Agreement from and after the date of termination.
3.3 It is the intent of the parties that no payment or transfer of anything of value shall be made with the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining or maintaining business or any improper advantage for a party or any Affiliate or subcontractor of a party in connection with the performance by it or its Affiliates under this Agreement.
3.4 Each party agrees to notify the other party immediately upon receipt of any solicitation, demand or other request for anything of value, by or on behalf of any Government Official relating to this Agreement.
3.5 Neither party nor any of its officers, directors, employee, agents or other representatives acting on its behalf in connection with this Agreement shall, directly or indirectly, engage in any transaction or dealing in property or interests in property of, receive from or make any contribution of funds, goods or services to or for the benefit of, provide any payments or material assistance to, or otherwise engage in or facilitate any transactions with a Prohibited Person. As used herein, Prohibited Person means (a) any individual or entity that has been determined by competent authority to be the subject of a prohibition in any law, regulation, rule or executive order administered by the U.S. Office of Foreign Assets Control ( OFAC ), (b) the government, including any political subdivision, agency or instrumentality thereof, of any country against which the United States maintains economic sanctions or embargoes, (c) any individual or entity that acts on behalf of, is organized under the laws of, or is owned or controlled by a national or the government of a country against which the United States maintains a comprehensive economic sanction or embargo, (d) any individual or entity that has been identified on the OFAC Specially Designated Nationals and Blocked Persons List (Appendix A to 31 C.F.R. Ch. V), including any individual or entity identified by the U.S. Government as a Specially Designated Terrorist, a Specially Designated Global Terrorist or a Foreign Terrorist Organization, (e) any individual or entity that has been designated under the Annex to Executive Order 13224 or (f) any individual or entity that has been designated on any similar list or order published by the U.S. Government.
Section 4. No Ownership Interest . Each party affirms that (a) no Government Official, or immediate family member of such an official, has any ownership interest, direct or indirect, in such party or its Affiliate or in the contractual relationship established by this Agreement and (b) no such Person is an officer, director, employee, shareholder, agent or representative acting on behalf of such party. If, during the term of this Agreement, there is acquisition of an interest in a party or in this Agreement by a Government Official, or an immediate family member of such an official, or if such Person becomes an officer, director, employee, shareholder agent or representative acting on behalf of such party, such party agrees that it shall make immediate disclosure to the other party.
Appendix D-2
Section 5. Subcontractors .
5.1 Each party shall require, and shall require each subcontractor, in all agreements in connection with the performance by it or its Affiliates under this Agreement, to agree to the provisions of this Appendix D , including:
1. that such subcontractor and its officers, directors, employees, shareholders agents or representatives acting on its behalf shall comply with the provisions of Sections 2, 3 and 4 of this Appendix D in relation to themselves;
2. an express obligation to notify a party immediately of any such violation or of such subcontractor having reasonable grounds for suspecting that such violation has occurred; and
3. if such violation has occurred, an express right in favor of the contracting party to terminate the relevant subcontract with immediate effect and pay no compensation or reimbursement to subcontractor whatsoever for any service performed after the date of termination.
Each party shall notify the other party immediately on receipt of notification or otherwise becoming aware of any such violation.
5.2 If any subcontractor or any of such subcontractors officers, directors, shareholders, employees, agents or representatives acting on behalf of subcontractor violates any provision of Section 2, 3 or 4 of this Appendix D , as it applies to such subcontractor and its officers, directors, shareholders, employees, agents or representatives acting on behalf of subcontractor pursuant to Section 5.1 of this Appendix D , either party shall, if so required by the other party, terminate the relevant subcontract with immediate effect and pay no compensation or reimbursement to subcontractor whatsoever for any service performed after the date of termination.
Section 6. Annual Certification . Within 30 days prior to each anniversary of the date of this Agreement, each party shall submit to the other party a certification that neither it nor any of its officers, directors, employees, agents or other representatives acting on its behalf in connection with this Agreement have engaged in any transaction or activity in violation of this Appendix D .
Appendix D-3
SCHEDULE 1
Notice Addresses
(Kraton Formosa Polymers Corporation)
11F.-1, No. 32, Song Ren Rd.
Xinyi Dist., Taipei City 110
Taiwan R.O.C.
Attention: President
Tel: 886-2-2722-5412 (x301)
Fax: 886-2-2722-5415
with a copy, which shall not constitute notice, to:
Kraton Polymers LLC
15710 John F. Kennedy Blvd., Suite 300
Houston, Texas 77032
Attention: General Counsel
Telephone: 281-504-4700
Facsimile: 281-504-4753
E-Mail: Stephen.Duffy@Kraton.com
Formosa Petrochemical Corporation
Rm. 432, 4F, 201 Tung Hwa N. Rd., Taipei, Taiwan
Attention: Presidents Office
Tel: 886-2-2712-2211 #6282
Fax: 886-2-2718-6886
Email: jmchang@fpcc.com.tw
with a copy, which shall not constitute notice to:
Rm. 377, 4F, 201 Tung Hwa N. Rd., Taipei, Taiwan
Attention: Presidents Office
Tel: 886-2-2712-2211 #6276
Fax: 886-2-8712-8050
Email: cttsai@fpcc.com.tw
Schedule 1-1
EXHIBIT 31.1
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Kevin M. Fogarty, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Kraton Performance Polymers, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 (e) and 15d-15 (e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting to the registrants auditors and the audit committee of the registrants boards of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 2, 2013
By: |
/ S / K EVIN M. F OGARTY |
|
Kevin M. Fogarty President and Chief Executive Officer |
EXHIBIT 31.2
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Stephen E. Tremblay, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Kraton Performance Polymers, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 (e) and 15d-15 (e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants boards of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 2, 2013
By: |
/ S / S TEPHEN E. T REMBLAY |
|
Stephen E. Tremblay Vice President and Chief Financial Officer |
EXHIBIT 32.1
CERTIFICATION PURSUANT
TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(SUBSECTIONS (a) AND (b) OF SECTION 1350, CHAPTER 63 OF
TITLE 18, UNITED STATES CODE)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), each of the undersigned officers of Kraton Performance Polymers, Inc. a Delaware corporation (the Registrant), does hereby certify, to such officers knowledge, that:
The Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2013 (Form 10-Q) of the Registrant fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
Date: May 2, 2013
By: |
/ S / K EVIN M. F OGARTY |
|
Kevin M. Fogarty President and Chief Executive Officer |
By: |
/ S / S TEPHEN E. T REMBLAY |
|
Stephen E. Tremblay Vice President and Chief Financial Officer |
(A signed original of this written statement required by Section 906 has been provided to Kraton Performance Polymers, Inc. and will be retained by us and furnished to the Securities and Exchange Commission or its staff upon request.)