EXHIBIT 10.02
Notarial Deed
Transacted at Dusseldorf, this 5th day of June 2001.
Before me, the undersigned notary public
Dr. Henryk Haibt,
notary public for the district of the Oberlandesgericht Dusseldorf with offices
at Dusseldorf appeared today
1. Mr Diether Klingelnberg, born on March 22, 1944, with residence at
Hainbuchenweg 5, B- 4730 Hauset, Belgium,
- identified by submission of his official valid German passport -
acting in his own name and on his own behalf
and
acting not in his own name, but in his capacity as managing director
with single power of representation and released from the restrictions
set forth under ss. 181 BGB in the name and on behalf of
TKM GmbH i.G.,
incorporated by notarial deed dated May 4, 2001 (UR-No. 601/2001
of notary public Klaus E. Herrmann, Remscheid) with registered
offices at Remscheid and to be registered with the Commercial
Register of the Local Court Remscheid
promising to prove his power of representation by submission of a
certified copy of the notarial deed dated May 4, 2001 (UR-No. 601/2001
of notary public Klaus E. Herrmann, Remscheid), the original of which
will be attached to this notarial deed;
2. Mr. Thomas Meyer, born on October 10, 1955, with residence at
Paul-Krause-Str. 23, D-42897 Remscheid, Germany,
- identified by submission of his official valid German passport -
acting not in his own name, but in his capacity as managing director
with single power of representation and released from the restrictions
set forth under ss. 181 BGB in the name and on behalf of
TKM GmbH i.G.,
incorporated by notarial deed dated May 4, 2001 (UR-No. 601/2001
of notary public Klaus E. Herrmann, Remscheid) with registered
offices at Remscheid and to be registered with the Commercial
Register of the Local Court Remscheid
promising to prove his power of representation by submission of a
certified copy of the notarial deed dated May 4, 2001 (UR-No. 601/2001
of notary public Klaus E. Herrmann, Remscheid), the original of which
will be attached to this notarial deed
and
acting not in his own name, but in his capacity as managing director
with single power of representation and released from the restrictions
set forth under ss. 181 BGB in the name and on behalf of
IKS Klingelnberg GmbH,
with registered offices at Remscheid and registered with the
Commercial Register of the Local Court Remscheid under HR B 1463
promising to prove his power of representation by submission of a
certified transcript from the Commercial Register of the Local Court
Remscheid, will be a certified copy of which is attached to this
notarial deed;
3. Mr. William M. Schult, born on July 25, 1961, with residence at 41017
Edgewood, Kentucky , United States of America
- identified by submission of his official valid passport of the United
States of America -
acting not in his own name, but in his capacity as Vice President and
Chief Financial Officer with single power of representation in the name
and on behalf of
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International Knife & Saw, Inc
a corporation duly organized and validly existing under the laws
of the State of Delaware, USA, with registered offices at Erlanger
KY 41018, 1299 Cox Avenue, USA
promising to prove his power of representation by submission of a
certified and legalized confirmation of power of representation, the
original of which will be attached to this notarial deed.
The persons appearing declared to have sufficient command of the English
language and waive their rights to have a sworn interpreter attended.
The notary asked the persons appearing whether the notary or a colleague of his
has been retained by the persons appearing in the same subject matter acting not
as a notary public. The persons appearing denied.
The persons appearing - acting as aforesaid - declared and requested for
notarisation of the following
Agreement
on the
Sale and Transfer of Shares
By and between
1. International Knife & Saw, Inc., with registered offices at Erlanger KY
41018, 1299 Cox Avenue, USA,
- hereinafter also referred to as "Seller" -
and
2. Mr. Diether Klingelnberg, Hainbuchenweg 5, B- 4730 Hauset, Belgium,
and
3. TKM GmbH i.G. with registered offices at Remscheid and to be registered
with the commercial register of the local court Remscheid,
- Diether Klingelnberg and TKM GmbH i.G.
Hereinafter collectively also referred to as "Purchasers" -
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and
4. IKS Klingelnberg GmbH with registered offices at Remscheid and
registered with the commercial register of the local court Remscheid
under HR B 1463
- hereinafter also referred to as the "Company"-
PREAMBLE
WHEREAS, Seller is sole shareholder of the Company;
WHEREAS, Seller has agreed to sell and to transfer shares in the aggregate
nominal amount of DM 5.400.000,00 to TKM GmbH i.G. and to sell and to
transfer shares in the aggregate nominal amount of DM 600.000,00 to
Diether Klingelnberg;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1
Corporate Ownership
1. IKS Klingelnberg GmbH is a company with limited liability with
registered offices at Remscheid, Germany and registered with the
Commercial Register of the Local Court of Remscheid under HR B 1463.
2. The Seller is sole shareholder of the Company.
3. The registered share capital of the Company amounts to nominal DM 6
,000,000.00 (six million Deutsche Mark) and is divided as follows:
3.1 One share in the nominal amount of DM 5,000,000.00
3.2 One share in the nominal amount of DM 1,000,000.00
-----------------
DM 6,000,000.00
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All contributions to the share capital are fully paid in and
non-assessable. There have been no repayments of any kind of the share
capital.
Section 2
Sale and Transfer of Shares
1. Seller hereby splits, for purposes of the sale and transfer of a
partial share in the nominal amount of DM 600,000.00 to Diether
Klingelnberg, the share in the nominal amount of DM 1,000,000.00 as
described in ss. 1 (3.2) hereinabove into a partial share in the
nominal amount of DM 600,000.00 and a partial share in the nominal
amount of DM 400,000.00.
2. Seller sells and transfers to Purchasers and Purchasers hereby purchase
and acquire from Seller, subject to the terms and conditions of this
Agreement and economically effective as of the Effective Date
(hereinafter defined) any and all outstanding shares in the Company in
a total nominal amount of DM 6,000,000.00 (hereinafter also the
"Shares") free and clear of all liens, claims, security interests,
options, charges, pledges and other restrictions or encumbrances of any
nature whatsoever; together with any and all rights, obligations and
privileges attached thereto, in particular any and all profits and
losses as accrued from the Effective Date, as follows:
2.1 to Diether Klingelnberg
one partial share in the nominal amount of DM 600,000.00
2.2 to TKM GmbH i.G.
one share in the nominal amount of DM 5,000,000.00
one partial share in the nominal amount of DM 400,000.00
3. Purchasers herewith accept the above sale and transfer of the Shares.
4. The Company approves the split of the share according to Sec. 2 (1) and
the above sale and transfer of the Shares.
5. The Purchasers herewith notify the Company of the transfer the Shares
pursuant to ss. 16 of the German Limited Liability Companies Act
("GmbH-Gesetz"). The Company herewith confirms and acknowledges receipt
of this notification.
Section 3
Effective Date and Closing
1. This Agreement and any and all transactions contemplated hereunder, in
particular the sale and transfer of the Shares and the right to
participate in the profits and losses, shall become economically
effective as of January 1, 2001, 00,00 hours (hereinabove and
hereinafter referred to as the "Effective Date").
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2. The closing of the transactions contemplated hereunder shall take place
in Dusseldorf, Germany, on Tuesday, June 5, 2001 at such place and at
such time the parties will mutually agree upon (hereinafter referred to
as the "Closing Date").
Section 4
Purchase Price
1. The Purchase Price for the Shares in the Company sold and purchased
hereunder is
US $ 11,723,858.38
(United States Dollars eleven million seven hundred twenty three thousand eight
hundred fifty eight and 38/100)
2. The Purchase Price is paid at Closing by Purchasers, on behalf and for
the account of Seller, to the following bank accounts of Deutsche Bank
AG, Remscheid in repayment of the Seller's outstanding obligations of
indebtedness to Deutsche Bank AG:
Deutsche Bank AG, Remscheid Branch
Bank Account No.: 523 9009
Sorting Code ("BLZ"): 340 70093
3. The Purchasers will bring the confirmation from Deutsche Bank to the
Closing.
Section 5
Guarantees of the Seller
Seller represents and warrants as an independent guarantee effective as of the
transfer of the Shares sold and purchased hereunder as follows:
1. Seller is a corporation incorporated and existing under the laws of the
State of Delaware, United States of America. Seller has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Seller, has been effectively
authorized by all necessary corporate action by Seller and constitutes
a legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms.
2. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the fulfilment of the terms hereof
will not violate or result in a breach of any of the terms or
provisions of, or constitute a default (or any event which,
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with notice or the passage of time, or both, would constitute a
default) under, or conflict with or result in the termination of, or
accelerate the performance required by, (i) any agreement, indenture or
other instrument to which Seller is a party or by which it is bound,
(ii) any judgement, decree, order or award of any court, governmental
body or arbitrator by which Seller is bound, or (iii) any law, rule or
regulation applicable to Seller. No authorization, consent, or approval
of, or filing with, any governmental entity or other third party is
necessary for the performance by Seller of its obligations under this
Agreement.
3. Seller is not prohibited by any order, writ, injunction, stay or decree
of any body of competent jurisdiction from consummating the
transactions contemplated by this Agreement and no such action or
proceeding is pending against Seller which questions the validity of
this Agreement, any of the transactions contemplated hereby or any
action which has been taken by Seller in connection herewith or in
connection with any of the transactions contemplated hereby.
4. Seller holds good legal and beneficial title to the Shares, free and
clear of all liens, claims, security interests, options, charges,
pledges and other restrictions or encumbrances of any nature whatsoever
other than the pledge of the Shares to Deutsche Bank.
5. No financial advisor, finder agent or similar intermediary has acted on
behalf of Seller in connection with this Agreement or the transactions
contemplated hereby other than Jefferies & Co., Inc. ("Jefferies"), and
there are no brokerage commissions, finder's fees or similar fees or
commissions, payable by Seller in connection herewith, other than fees
payable to Jefferies that are the sole responsibility of Seller.
Section 6
Guarantees of the Purchasers
Purchasers hereby jointly and severally represent and warrant as an independent
guarantee effective as of the transfer of the shares sold and purchased
hereunder as follows:
1. TKM GmbH i.G. is a company with limited liability (GmbH) duly
incorporated under the laws of the Federal Republic of Germany. TKM
GmbH i.G. has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by
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Purchasers, has been effectively authorized by all necessary company
action by Purchasers and constitutes a legal, valid and binding
obligation of Purchasers, enforceable against Purchasers in accordance
with its terms.
2. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the fulfillment of the terms
hereof will not violate or result in a breach of any of the terms or
provisions of, or constitute a default (or any event which, with notice
or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the
performance required by, (i) any agreement, indenture or other
instrument to which Purchasers are (or either of them is) a party or by
which they are (or either of them is) bound, (ii) the articles of
incorporation, bylaws or other constitutive documents of Purchasers,
(iii) any judgment, decree, order or award of any court, governmental
body or arbitrator by which Purchasers are (or either of them is)
bound, or (iv) any law, rule or regulation applicable to Purchasers (or
either of them). No authorization, consent, or approval of, or filing
with, any governmental entity or other third party is necessary for the
performance by Purchasers of their obligations under this Agreement.
3. Purchasers are not prohibited by any order, writ, injunction, stay or
decree of any body of competent jurisdiction from consummating the
transactions contemplated by this Agreement and no such action or
proceeding is pending against Purchasers that questions the validity of
this Agreement, any of the transactions contemplated hereby or any
action which has been taken by Purchasers in connection herewith or in
connection with any of the transactions contemplated hereby.
4. No financial advisor, finder agent or similar intermediary has acted on
behalf of Purchasers in connection with this Agreement or the
transactions contemplated hereby, and there are no brokerage
commissions, finder's fees or similar fees or commissions, payable by
Purchasers in connection herewith.
5. Purchasers do not have actual knowledge that any of the representations
and warranties made by Seller in this Agreement is not true and
correct.
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Section 7
License to use corporate names and trademarks
Seller shall not question or challenge the right of the Company and its
successors to operate their business using their present corporate name "IKS
Klingelnberg GmbH" and the trademarks, brands, logos and names "IKS
Klingelnberg" or any similar name.
Section 8
Taxes and Costs
1. Each Party hereto shall bear and pay all costs and expenses incurred by
it in connection with the transactions contemplated by this Agreement,
including, but not limited to, the fees, costs and expenses of its own
financial consultants, accountants and legal counsel. Notarial fees
related to the transfer of the Shares to Purchasers shall be borne by
Purchasers.
2. Transfer taxes, including real estate transfer taxes, related to the
transfer of the Shares to Purchasers shall be borne by Purchasers. Any
other taxes on income, profits and capital gains including trade taxes
- if any - arising out of or in connection with the transfer of the
Shares to Purchasers shall be borne by Seller.
Section 9
Assignment of Rights and Undertakings
This Agreement and any rights or obligations hereunder may not be assigned or
transferred by a party, whether completely or in part, without prior written
consent of the other parties.
Section 10
Notices and Communications
1. All notices and/or communications to be given under this Agreement and
its implementation shall be addressed to the following addresses:
If to Seller: If to Purchasers:
International Knife & Saw, Inc. TKM GmbH
1299 Cox Avenue In der Fleute 18
Erlanger, KY 41018 USA 42897 Remscheid, Germany
Attention: Board of Directors Attention: Managing Director
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2. The aforesaid addresses shall remain valid and enforceable vis-a-vis
any other party unless and until the other party has been notified in
writing of any other address.
3. All notices or communications shall be in writing and shall be valid
upon receipt.
4. All notices or communications shall be sent by registered mail, return-
receipt requested. The notices sent by telefacsimile or mail shall only
be deemed to be validly given if followed immediately by a written
confirmation sent by registered mail, return-receipt requested. In case
the written confirmation follows immediately the notice given by
telefacsimile or mail such notice shall be deemed to be served upon
receipt of the telefacsimile or mail.
Section 11
Miscellaneous
1. This Agreement shall be exclusively governed by and construed in
accordance with the laws of the Federal Republic of Germany excluding
the applicable rules on conflicts of laws.
2. This Agreement including without limitation this clause itself may not
be amended except by an instrument in writing signed by all of the
parties hereto specifically referring to this Agreement.
3. Non-exclusive jurisdiction and venue for any disputes or controversies
arising out of or in connection with this Agreement, its validity, its
implementation and/or its performance shall be with the competent
courts of the city of Dusseldorf, Germany.
4. If any provision of this Agreement shall become or be held to be
invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity of any other provision of this Agreement. Such
invalid or unenforceable provision shall be deemed to be automatically
amended and replaced by such a provision as to form, substance, time,
measure and jurisdiction as shall be valid and enforceable and as shall
accomplish, as far as possible, the purpose and intent of the parties
with respect to the invalid or unenforceable provision.
5. The parties herewith authorize
(i) Mr. Jochen Vorsmann and
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(ii) Mrs. Angelika Leyendecker,
clerks of the officiating notary, with business address Berliner Allee
21, 40211 Dusseldorf, Germany, - each of them individually and being
released from the restrictions of ss. 181 of the German Civil Code - to
make any non-substantive changes to this notarial deed which may be
necessary and/or conducive in connection with the conclusion of this
Agreement on the sale and transfer of shares and its implementation.
6. All declarations of consent and approval shall be deemed to have been
duly received by and served upon the parties upon receipt thereof by
the undersigned notary public. The parties hereby waive their rights to
have the declaration of approval served formally. The notary public is
hereby authorized and entrusted to attach all declarations of consent
and approval provided for hereunder to this notarial protocol.
7. The parties declare, that the Company owns real estate.
The above notarial deed was then read by the notary public to the persons
appearing, approved by the persons appearing and signed by them and by the
notary public, each in their own hands, as follows:
/s/ Diether Klingelnberg
-------------------------
Diether Klingelnberg
/s/ Thomas Meyer
-------------------------
Thomas Meyer
/s/ W. Schult
-------------------------
W. Schult
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