EXHIBIT 10.2
Share Purchase and Transfer Agreement
Deed No.: A. Prot. 2002, Nr 182
Recorded in Basel, Switzerland,
on December 20, 2002.
Before me, the undersigned Notary Public Dr. Beat Schultheiss, with business
address in Basel,
appeared today:
1) Mr. Dietrich F. Kessel, Attorney at law, , born September 18, 1937, german
citizen, business address: Elberfelder Strasse 4, 40213 Dusseldorf. The
First Person Appearing - identifying himself by his valid ID card -
declared that he is not acting on his own behalf but in the name of and
with a written power of attorney from
Metallurg Holdings Corporation,
a company duly incorporated and validly existing under the laws
of the State of New York/USA, with its registered offices at
6 East 43rd Street, New York,
New York 10017, USA,
- hereinafter referred to as "Seller"-
The first person appearing submitted a fax copy of the notarially certified
power of attorney dated 17 December, 2002 as evidence of his power of
representation. The original has been submitted to the notary before the
execution of this agreement.
2) Dr. Nicole Franke, Attorney at law, born mai 15, 1970, german citizen,
business address: Uerdinger Str. 88, 40474 Dusseldorf. The Second Person
Appearing - personally known to the Notary Public - declared that she is
not acting on her own behalf but in the name and with a written power of
attorney from
Sudamin Recycling GmbH & Co. KG,
a company organized and existing under the laws of Germany,
having its registered offices at Bonifaciusstrasse 160, 45309 Essen,
Federal Republic Germany,
represented by its General Partner Sudamin Verwaltungs GmbH,
having its registered offices at Bonifaciusstrasse 160, 45309 Essen,
Federal Republic Germany,
- hereinafter referred to as "Buyer" -
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The second person appearing submitted the power of attorney dated
[_] December, 2002 as evidence of her power of representation. The original
has been submitted to the notary before the execution of this agreement.
The notary satisfied himself that the persons appearing have sufficient command
of the English language and declared that he himself has sufficient command of
the English language as well. The persons appearing waived their right to have
this deed translated into the German language.
The Persons Appearing - acting as indicated - then requested the notarization of
the following:
SHARE PURCHASE AND TRANSFER AGREEMENT
WHEREAS:
(a) The Seller is the legal and beneficial owner of all shares in the share
capital of:
(i) Metallurg International Resources GmbH, a company with limited
liability, organized and existing under the laws of the Federal
Republic Germany, with its registered offices at Kreuzstrasse 34,
40210 Dusseldorf, Federal Republic of Germany (the "German Company");
(ii) Ferrolegeringar AG, a company with limited liability, organized and
existing under the laws of the Switzerland, having its registered
seat and with offices at Auenstrasse 2, 8600 Dubendorf, Switzerland,
(the "Swiss Company");
and
(iii) AB Ferrolegeringar, a company with limited liability, organized and
existing under the laws of Sweden, having its registered seat in
Lastmakargatan 18, 103 88 Stockholm, Sweden, (the "Swedish Company");
The German Company, the Swiss Company, and the Swedish Company are
collectively referred to as the "Companies", and each of them as a
"Company".
(b) The share capital of the Companies is composed as follows:
(i) German Company, divided into two (2) ordinary share having a total
nominal amount of DM 200,000.00 (the "German Shares");
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(ii) Swiss Company, divided into 3,000.00 bearer shares a CHF 1,000.00,
having a total nominal value of CHF 3,000,000.00 (the "Swiss Shares");
and
(ii) Swedish Company, divided into ordinary shares having a total nominal
value of SEK 2,000,000.00 (the "Swedish Shares");
The German Shares, the Swiss Shares, and the Swedish Shares are
collectively referred to as the "Shares";
(c) The German Company is the legal and beneficial owner of:
o of all existing shares in Metallurg International Resources Russia
Ltd., a company with limited liability, organized and existing under
the laws of Russia, having its registered offices at ul. Bolshaya
Ordynka 40-2, 109017 Moscow, Russia, (the "Russian Subsidiary");
o a branch office in Moscow, having its registered offices at ul.
Bolshaya Ordynka 40-2, 109017 Moscow, Russia, (the "Russian Branch");
and
o a branch office in Shanghai, having its registered offices at Room
1101, South Tower, Hong Kong Plaza, No. 283 Huaihai Zhong Road,
Shanghai, China 200021, (the "Chinese Branch");
(d) The Swiss Company is the legal and beneficial owner of:
o of all existing shares in Metalchimica S.r.l., a company with limited
liability, organized and existing under the laws of Italy, having its
registered offices at Via San Pio V, 36, 10125 Torino, Italy, (the
"Italian Subsidiary");
and
o of all existing shares in FAG Poland SPzo.o., a company with limited
liability, organized and existing under the laws of Poland, having its
registered offices at ul. Kosciuszki 19, 30-105 Krakow, Poland, (the
"Polish Subsidiary");
The Russian Subsidiary, the Italian Subsidiary, the Polish Subsidiary and
the Swedish Subsidiary are collectively referred to as the "Subsidiaries";
the Russian Branch, the Chinese Branch and the Swedish Branch are
collectively referred to as the "Branches";
(e) The Seller wishes to sell and transfer the Shares to the Buyer and the
Buyer wishes to purchase and acquire the Shares from the Seller, subject to
the terms and conditions as presented in this agreement:
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IT IS AGREED AS FOLLOWS:
ARTICLE 1 SALE AND PURCHASE OF THE SHARES
1.1 Sale and Purchase of the Shares
Subject to the terms and conditions set out in this agreement, the Seller
hereby sells and agrees to transfer the Shares with all ancillary rights
and all existing certificates to the Buyer and the Buyer hereby purchases
and agrees to accept the transfer of Shares from the Seller.
1.2 Transfer of the Shares
With legal effect as of December 31, 2002 (the "Closing Date") as defined
in subsequent section 1.3 for each of the respective Shares the following
acts of transfer are/will be performed for each of the following share(s):
1.2.1 German Shares
(a) The Seller hereby assigns and transfers to the Buyer the German Shares.
(b) The Buyer accepts the assignment and transfer of the German Shares.
(c) The assignment and the transfer is carried out with suspensive effect as of
December 31, 2002 (24.00 h).
(d) All profits / losses related to the German Shares for the current fiscal
year shall accrue to the Buyer. The same applies mutatis mutandis to
profits/losses of the previous fiscal years if they have not yet been
distributed (i.e. profits/losses carried forward or of previous fiscal
years for which resolutions pertaining to their appropriation have not been
adopted).
(e) The formal approval of the shareholders regarding any disposals of shares
in the German Company which is required pursuant to section 9 of the German
Company's Articles of Association can be waived due to the fact that the
Seller is the sole shareholder of the Company.
(f) The acting Notary Public is hereby requested to notify the German Company
of the transfer of the German Shares pursuant to 'SS' 16 GmbHG (German
Act on Companies with Limited Liability).
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1.2.2 Swiss Shares
(a) The Seller hereby assigns and transfers to the Buyer the Swiss Shares.
(b) The Buyer accepts the assignment and transfer of the Swiss Shares.
(c) Therefore, the Seller assigns his possessory rights and claims
(Herausgabeanspruche) against the depositary Mr. Schenker, c/o Baker Mc
Kenzie, Zurich, Switzerland, under the deposit agreement regarding the
share certificates relating the Swiss Shares with suspensive effect as of
December 31, 2002 (24.00 h). The Buyer hereby accepts said assignment.
The Seller shall notice said assignment with undue delay after the Signing
Date to Mr. Schenker.
(d) All profits / losses related to the Swiss Shares for the current fiscal
year shall accrue to the Buyer. The same applies mutatis mutandis to
profits/losses of the previous fiscal years if they have not yet been
distributed (i.e. profits/losses carried forward or of previous fiscal
years for which resolutions pertaining to their appropriation have not been
adopted).
1.2.3 Swedish Shares
(a) The Seller hereby assigns and transfers to the Buyer the Swedish Shares.
(b) The Buyer accepts the assignment and transfer of the Swedish Shares.
(c) The assignment and the transfer is carried out with suspensive effect as of
December 31, 2002 (24.00 h).
(d) All profits / losses related to the Swedish Shares for the current fiscal
year shall accrue to the Buyer. The same applies mutatis mutandis to
profits/losses of the previous fiscal years if they have not yet been
distributed (i.e. profits/losses carried forward or of previous fiscal
years for which resolutions pertaining to their appropriation have not been
adopted).
(e) Without undue delay after the Closing Date, (1) all share certificates
relating to the Swedish shares shall be handed over to the Buyer and (2)
the Buyer's acquisition of the Swedish Shares shall be duly registered in
the Swedish Company's shareholders' register with effect as of the Closing
Date.
1.3 Seller's obligations regarding the conclusion of the Service Agreements
between Metallurg Group companies and the Companies
The Seller shall procure and use its best efforts to ensure that
o London & Scandinavian Metallurgical Company Ltd., Rotherham, U.K.,
o Elektrowerk Weisweiler GmbH, Eschweiler-Weisweiler,
o Metallurg International Resources LLC., New York, U.S.A.,
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(collectively the "Suppliers"), the Companies and the other companies
listed in Annex I continue the business relations with each other as they
were exercised prior to the Closing Date, in particular to maintain the
business terms and conditions, (collectively the "Business Relations"), for
an indefinitive period of time commencing on the Closing Date to the extent
the Parties do not mutually agree otherwise on a case to case basis. Said
business relations shall be fixed in writing between the respective parties
involved, including but not limited to the Suppliers, the Companies and
those companies listed in Annex I, as soon as possible after the Closing
Date, however, until June 30, 2003 at the latest (collectively the "Service
Agreements"). In the event one of the Suppliers, of the Companies and/or of
the other companies listed in Annex I terminates a Business Relation and/or
a Service Agreement for other than good cause the other party of the
Business Relation and/or Service Agreement is entitled to claim for a
compensation for all disadvantages resulting from the termination. With
regard to the conclusion of the Service Agreements sentence 1 of this
section 1.3 applies accordingly.
The Parties agree that the perpetuation of the Business Relations and the
duly conclusion of the Service Agreements are of the essence.
1.4 Further actions
The Parties shall undertake all further actions and steps as may be
necessary and/or expedient to evidence and effectuate the transactions
described herein and all other actions necessary and/or expedient to
transfer the Shares on the Closing Date and to fulfill all obligations set
forth in 1.3 above.
ARTICLE 2 PURCHASE PRICE / ADJUSTMENT
2.1 The purchase price for the Shares amounts to a total sum of US dollars
5,500,000.00 (in words: US dollar five million five hundred thousand) (the
"Purchase Price"), and comprises of:
o US dollars 920,000.00 (in words: US dollar nine hundred twenty
thousand) for the German Shares;
o US dollars 3,560,000.00 (in words: US dollar three million five
hundred sixty thousand) for the Swiss Shares;
and
o US dollars 1,020,000.00 (in words: US dollar one million twenty
thousand) for the Swedish Shares;
2.2 A partial amount of US dollars 3,499,000.00 (in words: US dollar three
million four hundred ninety nine thousand) of the Purchase Price (the
"Partial Amount I") shall be payable by the Buyer within one (1) banking
day after the date of signing this agreement (the "Signing Date") at the
latest by wire transfer to the Seller's bank account no. 551-60474 at
Fleet International Bank, 100 Federal Street, Boston, MA 02110, USA, (the
"Seller's Account").
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2.3 A partial amount of US dollar 2,001,000.00 (in words: US dollar two million
one thousand) of the Purchase Price (the "Partial Amount II") shall be
payable by the Buyer not in cash but in bonds at 12,75% Senior Discount
Notes due in 2008 issued by Metallurg Holdings Inc., New York, USA which
are deposited at Goldman Sachs Bank, New York, USA, (the "Deposit Bank") to
the Seller to be delivered promptly after the Signing Date. The Buyer shall
instruct the Deposit Bank immediately after the Signing Date to ensure the
duly transfer of the Partial Amount II to the Seller (the "Seller's
Deposit").
2.4 If the Buyer defaults on its payment duties pursuant to 2.2 above, an
interest at a rate of 7.5 percentage points p. a. shall be charged from the
due date on the Partial Amount I. Further claims shall not be excluded.
2.5 As soon as the Partial Amount I and the Partial Amount II have been
received on the Seller's Account and the Seller's Deposit
respectively, the Seller shall confirm in writing to the Buyer the duly
achievement of the Partial Amount I and the Partial Amount II.
2.6 The Purchase Price shall be increased or decreased by the amount, by which
the net asset value based on the USD/US-GAAP internally prepared year-end
group financial statements (the "Net Asset Value") of the Companies as of
December 31, 2002 - in the same form as it was submitted to the Buyer as of
September 30, 2002 - is higher or lower than:
o an amount of USD 920,000.00 for the German Company (the "German Net
Asset Value")
o an amount of USD 1,020,000.00 for the Swedish Company (the "Swedish
Net Asset Value")
o an amount of USD 3,560,000.00 for the Swiss Company (the "Swiss Net
Asset Value") (collectively the "Companies'Net Asset Values").
2.7 The Companies' combined financial statements as of December 31, 2002
shall be drawn up in accordance with the US GAAP and preserve the
continuity of balance sheet consistency and valuation with the
Companies' financial statements as provided to the Buyer as of
September 30, 2002 (the latter collectively the "Group Financial
Statements"). Such financial statements shall be based upon local GAAP,
local currency statutory financial statements of each Company and shall be
audited (collectively the "Statutory Financial Statements"). The Statutory
Financial Statements, the workpapers converting such statements to US GAAP,
US dollar amounts and the Group Financial Statements shall be provided to
the Seller as soon as they have been drawn up.
The Seller can have the Statutory Financial Statements audited by an
auditor of its choice. The Seller shall provide its worksheets for
converting the Statutory Financial Statements to US GAAP, US dollar amounts
and compiling such information to arrive at the Group Financial Statements
which shall be binding between the Parties, especially with respect to
determining the Companies Net Asset Values, if the Buyer does not provide
the Seller within fifteen (15) banking days after receiving the Group
Financial Statements with a written statement that the Group Financial
Statements have not been drawn up pursuant to the regulations of this
agreement and attaching revised Group Financial Statements (the
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"Revised Group Financial Statements") which reflect the modifications which
it believes necessary.
If the Seller does not react to this Revised Group Financial Statements
within further fifteen (15) banking days, these Revised Group Financial
Statements shall be binding between the parties. If, however, the Seller
provides the Buyer within said period with a statement that the Revised
Group Financial Statements have not been drawn up pursuant to the
regulations of this agreement, the difference of opinion between the
Parties shall be settled by an auditor to be determined by the President of
the German Chamber of Auditors (Wirtschaftsprufungskammer) in Dusseldorf,
Federal Republic of Germany, (hereinafter "Third Auditor") to the extent,
that the Parties do not mutually agree on an auditor.
If the Third Auditor determines the Companies Net Asset Values to be
between the figures of the Parties, this determination shall be conclusive
and binding on the Parties; if it is outside the figures, that
determination by the auditor chosen by one of the Parties which was closest
to that of the Third Auditor shall prevail.
Each Party shall bear the costs for its chosen auditor. The costs of the
Third Auditor shall be borne by the Parties corresponding to their
respective degree of loss or success. The Buyer shall insure that the
auditors appointed pursuant to this agreement receive access to the
Companies' offices and to their books and documents for the purpose of
inspecting the Group Financial Statements and supporting documentation. The
Parties shall strive towards the fact that the auditors appointed pursuant
to this agreement can review each other's working papers.
2.8 If the Purchase Price agreed in section 2.1 above is increased or decreased
with the application of the regulations in section 2.5 and 2.6, an interest
at a rate of 7.5 percentage points p. a. shall be charged on the increased
or decreased amount of the Purchase Price from the Closing Date on. The
Party which is liable to pay must pay to the other Party the difference
plus interest within ten (10) banking days after the date when the
Companies Net Asset Values were finally determined.
ARTICLE 3 SELLER'S DECLARATIONS REGARDING AGREED FEATURES
(BESCHAFFENHEITSVEREINBARUNGEN)
The Seller hereby declares to the Buyer that the following agreed features
(Beschaffenheits-vereinbarungen) set forth herein (the "Agreed Features") are
true and accurate as of the Signing Date and as of the Closing Date to the
extent otherwise set forth herein. If and as far as it depends below on the
Seller's knowledge, the Seller has constructive knowledge through the
Managing Directors of the Companies.
3.1 The statements in this agreement, including its preamble, regarding the
Seller and the Companies are complete, true and correct.
3.2 The Companies have been legally incorporated and are validly existing and
organized under the respective applicable laws.
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3.3 There are no shareholder resolutions which modify the Companies'
articles of association in force and which have not been registered with
the commercial register nor any additional agreements regarding the
constitution and organization of the Companies. No insolvency or
composition or equivalent proceedings have been opened in any jurisdiction
in respect of the Companies; the Companies are not over-indebted.
3.4 The Shares are validly issued and fully paid-up; no repayments of share
capital (Stammeinlagen) (including hidden repayments) have been made. The
Shares are free and clear from all encumbrances, including but not limited
to any rights of pledge, charge, mortgages, liens, attachments, claims,
usufruct or any insurances thereof, option rights and rights of first
refusal, and other rights created in favor of third parties.
3.5 The respective Shares constitute the entire issued and outstanding share
capital of the respective Company which is each fully paid up and has in no
way been repaid; no hidden profit distributions have been made.
3.6 The Seller is the legal and beneficial owner of the Shares and no other
persons or companies other than the Seller hold any Shares in the
Companies. The Seller is entitled to sell, transfer and freely dispose over
the Shares without the consent of any third party, in particular under the
terms of this agreement.
3.7 Except for the Subsidiaries and the Branches and Montanistica AG,
Switzerland, the Companies have no subsidiaries, hold no interests in any
other companies and are not obliged to acquire such interests other than
stated in this agreement. The Swiss Company as acquiring company and
Montanistica AG, Switzerland, as transferring company entered into a merger
agreement, which is valid and legally binding but not yet registered.
3.8 The Companies do not own real property or rights equivalent to real
property and are not obliged to acquire real property or rights equivalent
to real property except for the offices of the Italian Subsidiary, which
shall be disposed from the Italian Subsidiary to the German Company.
3.9 The Companies' business and the Companies' operating systems were
set up while observing all applicable legal regulations and official
orders. Neither its operation nor the Companies' business nor their
products or services violate applicable legal regulations or official
orders. The Companies possess all official permits which are required for
the execution and continuation of the current business of the Companies.
These permits will not be revoked or limited in the future to the best of
the Seller's knowledge.
3.10 Since December 31, 2001, the courses of the Companies' ordinary business
have only been conducted with prudent business practice and generally in
the same way as before; no fundamental disadvantages with respect to the
business operation and/or the net value, financial position and earning
situation or with respect to important assets or agreements of the
Companies have resulted. No profit distributions except for profit
distributions of Montanistica AG, Switzerland to the Seller of CHF
735,932.00 (before withholding tax) and CHF 240,000.00 (before withholding
tax) and for profit distributions of the Swedish Company to the Seller of
SEK 2,600,000.00 (before withholding tax), including provisional and hidden
distribution, have been made since December 31, 2001; nor have any hidden
reserves been dissolved or withdrawn except for during the course of
ordinary business.
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3.11 The Companies have duly drawn up in full and filed within the stipulated
deadlines the tax declarations and preliminary tax returns and made the
advance tax payments as well as preliminary tax returns and advance tax
payments regarding other general public taxes of any type which the Company
owes and those general public taxes, for which the Company is liable,
especially contributions, fees and customs duties, foreign fees, additional
fiscal payments in the sense of sec. 3 German General Tax Code
(Abgabenordnung - AO), and additional foreign fiscal payments - including
but not limited to withholding income tax on wages and salaries and
including, but not limited to, default fines, default interest, default
penalties and other liabilities connected to taxes before the Closing Date
-, social insurance contributions and other general public taxes of any
type which the Companies owe and such contributions, for which the
Companies are liable (collectively the "Taxes and Contributions") and drawn
up in full and filed within the stipulated deadlines all other legally
necessary declarations to the competent authorities. The Companies have
paid all Taxes and Contributions including advance payments and additional
payments when they became due before the Closing Date; if and as far as
they were not due before December 31, 2001, they are shown as liabilities
or as reserves in the respective corresponding amounts in the
Companies' financial statements as of December 31, 2001, irrespective
of whether these liabilities and/or obligations already existed or were
known when the above financial statements were drawn up. The Companies have
withheld all retainable Taxes (retainable tax amounts) and Contributions
and forwarded them to the competent recipient when they became due as well
as paid all additional fiscal payments, taxes for which it is liable and
fines.
The Companies have not before the Closing Date made any hidden profit
distribution to the shareholders or affiliated persons and/or companies in
the sense of 'SS' 15 et seq., AktG, which hidden profit distribution
would lead to tax disadvantages.
The Companies are currently not involved in any disputes or audits
regarding Taxes and Contributions with the competent tax authorities and
social security authorities.
3.12 The afore-going provisions 3.1 until 3.11 apply accordingly to the
Subsidiaries and the Branches.
The Seller and the Purchaser are in agreement that the above declarations
regarding the Agreed Features are neither a guarantee (Garantie) nor an express
warranty (zugesicherte Eigenschaft) within the meaning of the new 'SS''SS' 443
Sec. 1, 444 German Civil Code (BGB).
The Seller will do not neither grant any representation nor warranty. Therefore,
any liability of the Seller for a breach of representations and warranties
whatsoever, contractual, statutory or otherwise, other than for a breach of the
Agreed Features shall be excluded. Any rights or claims of the Buyer for
rescission (Rucktritt) or challenge (Anfechtung) of this agreement or any other
release from this agreement, based on statutory or any other legal grounds
whether or not relating to matters or factual circumstances covered by the
Agreed Features as well as all other statutory claims, including but without
limitation, such for a reduction of the Purchase Price (Minderung) and a
subsequent performance (Nacherfullung), shall be excluded to the extent
expressively agreed upon hereinafter legally possible.
ARTICLE 4 LEGAL CONSEQUENCES
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4.1 Should it turn out that one or more of the Agreed Feature(s) is/are untrue,
the Buyer or on the Buyer's choice the Companies can demand that the
Seller restores within an appropriate deadline, but at the latest within a
period of four (4) weeks following receipt of the Buyer's request, the
state which would have existed if the Agreed Feature(s) had been true and
complete (restitution in kind / Naturalrestitution). Setting the deadline
can be waived if it is not possible for the Seller to restore the state
pursuant to the Agreed Features or if it refuses to do so. If setting the
deadline can be waived or if the Seller fails to restore the state pursuant
to the Agreed Features within the deadline set, the Seller shall, by paying
monetary damages in lieu of performance (Schadensersatz in Geld) only,
place the Buyer or, depending on the Buyer's choice, the Companies in a
position, in which the Buyer and/or the Companies would have been if the
Agreed Feature(s) had been true and/or complete. Payments according to
sentence 3 of this section shall reduce the Purchase Price.
4.2 Except for the stipulations of the following subsection 4.3, all claims of
the Buyer pursuant to 4.1 in connection with 3.1 until 3. 9 are subject to
a statute of limitations of two (2) years. In deviance therefrom, a statute
of limitations of ten (10) years shall apply to defects of title on the
sold Shares. The respective statutes of limitations shall commence as of
the Closing Date - with the exception of the Buyer's claims pursuant to 4.1
in connection with 3.11.
4.3 A statute of limitations of twelve (12) months shall commence for claims of
the Buyer pursuant to 4.1 in connection with 3.11 after the submission of a
final, incontestable tax assessment notice or of another incontestable
demand for payment of the Taxes and Contributions concerned as well as
additional payments thereof and for the respective assessment period
concerned; this does not apply to cases of tax evasion and the failure to
pay taxes due to negligence.
The Buyer shall insure that the Companies give the Seller and its
consultants, who are under professional duty to maintain confidence, an
opportunity to participate in any external tax audit relating to periods
prior to the Closing Date. The Buyer shall ensure that the Companies inform
the Seller without undue delay of the notification and commencement of such
audits.
4.4 The statute of limitations for the Buyer's claims arising from this
agreement is halted if the Buyer's claim concerned is made to the Seller in
writing and stating the grounds before the expiration of the respective
statute of limitations. The statutory regulations shall otherwise apply
with respect to the halting of the statutes of limitations.
4.5. All claims and rights of the Buyer due to defects of Agreed Features are
excluded beyond the regulations in the above Article 3 of this agreement
and in this Article 4. The above regulations for defects are complete. In
any case the Buyer does not have a right to rescind from this agreement or
any other right to withdraw from this agreement.
4.6. The above ciphers 4.2 through 4.5 shall apply accordingly in the event that
the Company is entitled to a claim in the sense of the above cipher 1.
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ARTICLE 5 CONTINUATION OF THE BUSINESS UNTIL THE CLOSING DATE
The Seller is obliged to ensure that the Companies conduct their business
exclusively in the ordinary course and with prudent business practice only from
the Signing Date through the Completion Date to the same extent as in the past.
In the above period there shall be no fundamental modifications to the business,
no usual or abnormal agreements or obligations shall be entered into or
otherwise justified and/or sales take place and no agreements or obligations, as
well as with affiliated companies, shall be entered into, unless these have been
individually coordinated with the Buyer and the Buyer has granted its consent
hereto in advance.
ARTICLE 6 COSTS AND EXPENSES
Each Party shall bear the fees and costs of its advisors due in connection with
the preparation, consummation and execution of this agreement. The Buyer shall
bear all fees for the notarization of this agreement.
ARTICLE 7 APPLICABLE LAW AND JURISDICTION
This agreement is governed by German law. Any dispute arising out of or in
connection with this agreement shall be brought before the competent Court in
Dusseldorf.
ARTICLE 8 SEVERABILITY
In the case that a provision of this agreement shall be or shall become invalid
or unenforceable, the Parties are obliged to negotiate and agree to an
alternative to such void provisions which as nearly as possible reflects the
same commercial result as the deemed invalid or unenforceable provisions. The
same shall apply if a loophole is contained which requires a regulation. This
shall also apply if the invalidity of a provision stems from the scale of
performance or of time. In this case, the legal scale shall be applied. The
Seller and the Purchaser hereby agree that as soon as legal certainty
("Rechtssicherheit") will be exist that a provision of this agreement concerning
the new 'SS''SS' 444 German Civil Law ("BGB") shall be or shall become invalid
or unenforceable, the Parties are obliged to negotiate and agree to an
alternative to such void provisions which as nearly as possible reflects the
same commercial result as the deemed invalid or unenforceable provisions.
The First Person Appearing declared: The Companies own real property as
described in Section 3.8.
The Notary Public is hereby requested to notify the Company of the transfer of
the Shares pursuant to 'SS' 16 GmbHG (German Act on Companies with Limited
Liability).
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The Notary Public informed the Persons Appearing that on receipt of the
Company's Shares the Buyer as well as the Seller is unlimitedly liable for
contributions not paid by the Seller.
This deed (except its Annex I which on request of the persons appearing has not
been read aloud but signed instead by the persons appearing) was read aloud to
the Persons Appearing by the notary public, was approved by the Persons
Appearing and was personally signed by the Persons Appearing and the Notary
Public as follows:
B A S E L, this 20th (twentieth) day of December 2002 (two thousand and two)
A. Prot. 2002, Nr.
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Annex I
Listing of Agency Agreements
1. Agreement between London & Scandinavian Metallurgical Co. Limited and AB
Ferrolegeringar for the sales of products in Scandinavia.
2. Agreement between London & Scandinavian Metallurgical Co. Limited and
Ferrolegeringar AG for the sales of products in Europe, the Middle East and
Northern Africa.
3. Agreement between London & Scandinavian Metallurgical Co. Limited and GfE
Giesserei- und Stahlwerksbedarf, GmbH for the sales of products in Europe.
4. Agreement between London & Scandinavian Metallurgical Co. Limited and
Metalchimica S.r.l. for the sales of products in Italy.
5. Agreement between London & Scandinavian Metallurgical Co. Limited and
Metallurg International Resources GmbH for the purchase and sales of
products in the CIS and the purchase of products in China.
6. Agreement between Hydelko AS and AB Ferrolegeringar for the sales of
products in Scandinavia.
7. Agreement between Hydelko AS and Ferrolegeringar AG for the sales of
products in Europe, the Middle East and Northern Africa.
8. Agreement between Hydelko AS and GfE Giesserei- und Stahlwerksbedarf, GmbH
for the sales of products in Europe.
9. Agreement between Hydelko AS and Metalchimica S.r.l. for the sales of
products in Italy.
10. Agreement between Aluminum Powder Company Ltd. and GfE Giesserei- und
Stahlwerksbedarf, GmbH for the sales of products in Italy.
11. Agreement between Elektrowerk Weisweiler GmbH and AB Ferrolegeringar for
the sales of products in Scandinavia.
12. Agreement between Elektrowerk Weisweiler GmbH and Ferrolegeringar AG for
the sales of products in Europe, the Middle East and Northern Africa.
13. Agreement between Elektrowerk Weisweiler GmbH and GfE Giesserei- und
Stahlwerksbedarf, GmbH for the sales of products in Europe.
14. Agreement between Elektrowerk Weisweiler GmbH and Metalchimica S.r.l. for
the sales of products in Italy.
15. Agreement between Metallurg International Resources LLC and Metallurg
International Resources GmbH for the purchase, sales and tolling of
products in the CIS and the purchase and sales of products in China.
15/15
16. Agreement between GfE Gesellschaft fur Elektrometallurgie mbH and AB
Ferrolegeringar for the sales of products in Scandinavia.
17. Agreement between GfE Gesellschaft fur Elektrometallurgie mbH and
Ferrolegeringar AG for the sales of products in Europe, the Middle East and
Northern Africa.
18. Agreement between GfE Gesellschaft fur Elektrometallurgie mbH and GfE
Giesserei- und Stahlwerksbedarf, GmbH for the sales of products in Europe.
19. Agreement between GfE Gesellschaft fur Elektrometallurgie mbH and Metallurg
International Resources GmbH for the purchase and sales of products in the
CIS and the purchase of products in China.
20. Agreement between Turk Maadin Sirketi A.S. and Ferrolegeringar AG for the
sales of worldwide products.
21. Agreement between Companhia Industrial Fluminense and Metallurg
International Resources GmbH for the purchase of products in China.
22. Agreement between Shieldalloy Metallurgical Corporation and Metallurg
International Resources GmbH for the purchase of products in China.