Exhibit 10.1
Share Purchase and Transfer Agreement
Deed No.: A. Prot. 2003, Nr A. Prot. 115/2003
Recorded in Basel,
On this 29th day of September 2003.
Before me, the undersigned Notary Public Etienne Petitpierre, with place of
office at Gerbergasse 1, 4001 Basel, Switzerland,
appeared today:
1) Mr. Dietrich F. Kessel, Attorney at law, German citizen, business
address: Elberfelder Strasse 4, 40213 Dusseldorf. The First Person
Appearing - identifying himself by his valid German 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, Inc.
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 "MI"-
and
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 "MHC"-
hereinafter collectively referred to as the "Sellers"
The first person appearing submitted two notarially certified powers of
attorney dated Sept. 22, 2003 as evidence of his power of representation.
2) Dr. Nils Behling, German citizen, business address: Pempelforter Str. 50,
40211 Dusseldorf. The Second Person Appearing - identifying himself by
his valid German ID card - declared that she is not acting on her own
behalf but in the name and with a written power of attorney from
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LAGO Vierundzwanzigste GmbH
a company organized and existing under the laws of Germany,
having its registered offices at Dusseldorf,
Federal republic of Germany
registered with the commercial register local court Dusseldorf,
under HRB 48286
- hereinafter referred to as "Buyer" -
The second person appearing submitted the power of attorney dated
September 25, 2003 as evidence of his power of representation.
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 Sellers are the legal and beneficial owner of:
(i) all shares in the share capital of:
Elektrowerk Weisweiler GmbH, a company with limited liability,
organized and existing under the laws of the Federal Republic of
Germany, with its registered offices at Durener Strasse, 52249
Eschweiler-Weisweiler, Federal Republic of Germany (the "German
Company");
and
(ii) 40,132,000 shares in the share capital of
Turk Maadin Serketi A.S., a company with limited liability, organized
and existing under the laws of the Turkey, having its registered seat
and with offices at Cemi Topuzlu cad. Fuat Pasa sok. Dalyan Konut
Sitesi, A Blok Daire 12 Kat: 5 34726, Fenerbahce-Istanbul, Turkey (the
"Turkish Company");
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The German Company and the Turkish 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) the German Company's share capital is divided into three (3) ordinary
share having a total nominal value of DEM 15,000,000.00, being one
share with a nominal value of DEM 14,100,000.00 owned by MHC, and two
shares with a nominal value of DEM 600,000.00 and DEM 300,000.00,
respectively, owned by MI (the "German Shares");
and
(ii) the Turkish Company's share capital amounts to TL 203,200,000,000.
40,132,000 shares (i.e. 98.75 %) are owned by MI having a nominal
value of TL 200,660,000,000 (the "Turkish Shares"). 507,996 shares are
owned by the Turkish Company's director Selahattin Aydiner, having a
total nominal value of TL 2,539,980,000 and 1 share each with a value
of TL 5,000 is owned by the directors Muammer Pancer, Nurettin Cicek,
Sinasi Eskikaya, Mustafa Yeniceri (collectively the "Director's
Shares);
The German Shares and the Turkish Shares are collectively referred to as
the "Shares";
(c) The Turkish Company is the legal and beneficial owner of :
- 99% of the existing shares in Metal Ve Maden IC ve Dis Pazarlama
Ticaret Limited Sirketi, a company with limited liability, organized
and existing under the laws of Turkey, having its registered offices
at Cemi Topuzlu cad. Fuat Pasa sok. Dalyan Konut Sitesi, A Blok Daire
12 Kat: 5 34726, Fenerbahce-Istanbul, Turkey
- 74% of the existing shares in Oren Madencilik, a dormant company with
limited liability, organized and existing under the laws of Turkey,
having its registered offices at Cemi Topuzlu cad. Fuat Pasa sok.
Dalyan Konut Sitesi, A Blok Daire 12 Kat: 5 34726,
Fenerbahce-Istanbul, Turkey,
(collectively the "Subsidiaries");
(d) The Sellers wish to sell and transfer the Shares to the Buyer and the Buyer
wishes to purchase and acquire the Shares from the Sellers, subject to the
terms and conditions as presented in this Agreement:
IT IS AGREED AS FOLLOWS:
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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
Sellers hereby sell and agree 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 Sellers.
1.2 Transfer of the Shares
With legal effect as of the date when all stipulations and conditions set
forth below under section 2.2 and 2.3 of this Agreement, including, but
not limited to, due payment of the Purchase Price, have duly and
cumulatively be fulfilled and complied with (the "Closing Date") 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 effect as of the
Closing Date.
(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 5 of the
German Company's Articles of Association is explicitly waived based on
the fact that the Sellers are the sole shareholders of the Company.
1.2.2 Turkish Shares
(a) The Seller hereby assigns and transfers to the Buyer the Turkish Shares.
(b) The Buyer accepts the assignment and transfer of the Turkish Shares.
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(d) All profits/losses related to the Turkish 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).
1.3 Service Agreements (Handelsvertretervertrage) between Elektrowerk
Weisweiler GmbH and Metallurg Group Companies
No formal written service agreements (Handelsvertretervertrage) exist
between
- London & Scandinavian Metallurgical Company Ltd., Rotherham, U.K.,
- Shieldalloy Metallurgical Corporation, Newfield, N.J., U.S.A.
- Metallurg South Africa (Pty.) Limited, Germiston, Gauteng, South Africa
- Metallurg (Canada) Ltd., Burlington, Ontario, Canada
and Elektrowerk Weisweiler GmbH. Other existing intercompany agreements
will be fulfilled as contracted.
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/PAYMENT STIPULATIONS
2.1 The purchase price for the Shares amounts to a total sum of US dollars
10,000,000.00 (in words: US dollar ten million) (the "Purchase Price"),
comprising:
- US Dollars 7,500,000.00 (in words: US Dollar seven million five hundred
thousand) for the German Shares;
and
- US Dollars 2,500,000.00 (in words: US Dollar two million five hundred
thousand) for the Turkish Shares;
2.2 Payment of the Purchase Price shall be specifically subject to the due
and cumulative fulfillment of the following conditions precedent (the
"Conditions Precedent"):
- the German Company and Shieldalloy Metallurgical Corporation, a
corporation with seat in Newfield, NJ 08344, USA (hereinafter referred
to as "SMC") having duly entered into and executed a separate asset
purchase and transfer agreement (the "Asset Purchase Agreement")
enclosed herewith as Exhibit 2.2, to which the Parties specifically
make reference;
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- Fleet National Bank duly granting in writing the consent to the sale
and transfer of the Shares from Sellers to the Buyer, evidence of such
written consent to be provided by the Sellers to the Buyer.
2.3 The Purchase price shall be effected by the Buyer on September 30, 2003,
to the Seller's bank account no. 551 60474 at Fleet National Bank, 100
Federal Street, Boston, MA 02110, USA, (the "Seller's Account"), however
only if the Conditions Precedent have duly been fulfilled.
2.4 If the Buyer defaults on its payment duties pursuant to 2.2 above, an
interest at a rate of 7.5 percent per annum shall be charged from the due
date. Further claims shall be excluded.
2.5 As soon as the full amount has been received on the Sellers' Account,
the Seller shall confirm in writing to the Buyer the due receipt of the
Purchase Price.
ARTICLE 3 SELLER'S DECLARATIONS REGARDING AGREED FEATURES
(BESCHAFFENHEITSVEREINBARUNGEN)
The Sellers hereby declare to the Buyer that the following agreed features
(Beschaffenheits-vereinbarungen) set forth herein (the "Agreed Features") are
true and accurate 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
Sellers have 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.
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 except
the pledge of the Shares in favor of the Land Nordrhein-Westfalen, which
will be released immediately.
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.
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3.6 The Sellers are the legal and beneficial owner of the Shares and no other
persons or companies other than the Sellers hold any shares in the
Companies, save, however, the Director's Shares with regard to the
Turkish Company. The Sellers declare that they require the prior consent
from Fleet National Bank (the "Bank") to transfer and dispose of the
Shares (cf. section 2.2 Conditions Precedent) and that they have duly
informed the Bank of the intended disposal and transfer to the Buyer.
3.7 Except for the Subsidiaries, 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.
3.8 The Companies own real property or rights equivalent to real property:
a) The German Company owns the real property located at
Durener Strasse
Eschweiler Weisweiler
Grundbuch (Land Register):Weisweiler
Blatt 0167.
b) The Turkish Company owns the real property located at
Maslak Office Space - 7th, 8th and 9th floors in Section 2, Block 10,
Plot 7, Eski Buyukdere Cad., Sisli, Istanbul.
Demirkoy (Hamdibey) - Section E19B-17D-2, Block 242, Plots 30, 31 and 32.
Gocek (Beldibi) - Section 50L-11c-1 and 50L-111b-1, Plot 1278
Gocek (Iskele) - Section 50L.2A.2, Plot 1391
Gocek (Kocamese) - Section 14, Plots 1979 and 1980
Oren (Yali) - Section N19C.25b.D, Plots 3885 and 3886
Oren (Yali) - Section N19.c25.b.d, Plot 3917
Oren (Yali) - Section N19C25AC, Plot 1010
Kavak (Koyici Maden) - Section 127.a.09.a4, Block 136, Plots 4 and 7
Kavak (Kiringedik) - Section 127.a.09.a, Block 103, Plot 7
Kavak (Koyici) - Section 127.a.09a, Block 118, Plot 179
Sazak (Istasyon) - Section 44, Plots 1110 and 1111
Sazak (Istasyon) - Section 38, Plot 892
Uzunoluk (Tavas) - Block 179, Plot 17.
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
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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 Sellers' knowledge.
3.10 Since December 31, 2002 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, including provisional
and hidden distribution, have been made since December 31, 2002, nor have
any hidden reserves been dissolved or withdrawn except for during the
course of ordinary business.
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, 2002, they
are shown as liabilities or as reserves in the respective corresponding
amounts in the Companies' financial statements as of December 31,
2002, 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 they are 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 provisions 3.1 until 3.11 above apply accordingly to the
Subsidiaries.
The Sellers 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).
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The Sellers do not grant any representation or 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
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 Sellers restore 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 Sellers fail to restore the state pursuant to the Agreed
Features within the deadline set, the Sellers 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 Sellers 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 Sellers 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 Sellers
in writing and stating the grounds before the
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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.
4.7. The Parties may withdraw from this Agreement by giving written notice to
each other if the Closing Date shall not have occurred on or before 30.
September 2003 by reason of the failure of fulfilment of the Conditions
Precedent set forth under section 2.2 above.
ARTICLE 5 CONTINUATION OF THE BUSINESS UNTIL THE CLOSING DATE
The Sellers are obliged to ensure that the Companies conduct their business
exclusively in the ordinary course and with prudent business practice only
through the Closing 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
Sellers and the Purchaser hereby agree that as soon as
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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).
The Notary Public informed the Persons Appearing that on receipt of the
Company's Shares the Buyer as well as the Sellers is unlimitedly liable for
contributions not paid by the Sellers.
This deed 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:
Basel, this 29th day of September 2003
A. Prot. 115/2003
/s/ Dietrich F. Kessel
/s/ Nils Behling
/s/ Etienne Petitpierre
SHARE PURCHASE AND TRANSFER AGREEMENT
EXHIBIT 2.2
Sept. 26, 2003
ASSET PURCHASE AGREEMENT
between
Elektrowerk Weisweiler GmbH
with place of office at Eschweiler-Weisweiler,
Federal Republic of Germany
registered with the commercial register local court Aachen,
under HRB 11186
(hereinafter the "Buyer")
and
Shieldalloy Metallurgical Corporation
with place of office at Newfield, NJ 08344
USA
(hereinafter the "Seller")
Preamble
1) The Seller is a company engaged in production and marketing of
high-quality ferrous alloys and specialty metal products. The Buyer is
a company engaged in producing special grades of low carbon
ferrochrome.
2) The Seller has originally purchased from the Buyer certain stocks as
described in more detail in Exhibit 1 to this Agreement (hereinafter
the "Stocks"). The Stocks have originally been delivered to the
warehouses described in more detail in the spreadsheet together with
warehouse list attached hereto as Exhibit 2.
3) Good and valid title to the Stocks has passed from the Buyer to the
Seller.
4) The Buyer has an outstanding receivable against the Seller in an amount
of USD 4,458,357.45 (the "Receivable").
5) The Buyer is interested in repurchasing the complete Stocks from the
Seller and the Seller is interested in selling back the complete Stocks
to the Buyer.
2
Sept. 26, 2003
Now, therefore, the parties agree to the following:
I. Purchase and Sale
1. Subject to the terms and conditions contained herein, the Seller hereby
sells to the accepting Buyer that part of the Stocks, to which the
Seller still has good and valid title and transfers possession of same
to the accepting Buyer together with all related claims against the
warehouses set forth in Exhibit 1 and 2 of this Agreement (the
"Transferred Stocks"). Sale and transfer shall become effective
immediately upon signing this Agreement.
2. The purchase price for the Transferred Stocks shall be USD
4,905,012.94.
3. The Parties expressly declare and agree that the Receivable and the
Purchase Price are hereby set off against each other.
4. In case that at the time of signing this Agreement there should be a
shortfall in value between the Purchase Price and the Receivable to the
Buyer's detriment, the Seller will, without undue delay, pay in cash to
the Buyer the amount of the shortfall. The same shall apply mutatis
mutandis should there be a shortfall to the Seller's detriment.
5. The Parties acknowledge that the Seller has, or may create after the
signing of this agreement with the approval of the Buyer, outstanding
commitments to supply customers with low carbon ferrochrome. Buyer
agrees to sell and deliver the stocks required by the Seller to meet
such commitments as they are required. To the extent that such stocks
are supplied from the Transferred Stocks, the applicable purchase price
shall be the same as used in the calculation of the Purchase Price
under Paragraph 2 of this Section I.
II. Miscellaneous
1. This Agreement is subject to the laws of the Federal Republic of
Germany excluding private international law. The court of venue is
Dusseldorf, Federal Republic of Germany.
2. If any provisions of this Agreement should not be legally valid either
in part or in full or if there should be an omission in the Agreement,
the validity of the other provisions shall not be affected hereby.
Instead of the invalid provision or in order to fill in an omission
such regulation shall come into effect, which comes closest to what the
parties intended or would have intended pursuant to the spirit and
purpose of this Agreement if they had originally considered this issue.
3
Sept. 26, 2003
Weisweiler, September 26, 2003
------------------------------
Place, Date
/s/ J. Schalamon /s/ C. Schneider
----------------------------- ---------------------
Elektrowerk Weisweiler GmbH
represented by J. Schalamon and C. Schneider
Managing Director Head of Administration
Newfield, September 26, 2003
----------------------------
Place, Date
/s/ Joe T. Diegel
---------------------------------------
Shieldalloy Metallurgical Corporation
represented by Joe T. Diegel
Vice President
ASSET PURCHASE AGREEMENT
EXHIBIT 1
2nd Item Lot Unit Inventory
Branch Plant B/P Class Number Description Number QOH Cost Value $
8025 F700 101135 LC Ferrochrome Pwd 50x325 53543-01 21,707 1.0577 22,959.49
8025 F700 101135 LC Ferrochrome Pwd 50x325 52773-02 501 1.0577 529.91
8025 F700 101135 LC Ferrochrome Pwd 50x325 53879-01 163 1.0577 172.41
8025 F708 100416 LC Ferrochrome .025%C 4 x 8M 53742-03 3,000 0.7951 2,385.30
8025 F708 100416 LC Ferrochrome .025%C 4 x 8M 53855-00 10,180 0.7951 8,094.12
8025 F708 100416 LC Ferrochrome .025%C 4 x 8M 54059-11 373,529 0.7951 296,992.91
8025 F708 100421 LC Ferrochrome .025%C 4 x 8M 53742-49 4,000 0.8750 3,500.00
8025 F708 100422 LC Ferrochrome .025%C 4 x 8M 54059-45 44,000 0.8500 37,400.00
8025 F708 100416 LC Ferrochrome .025%C 4 x 8M 54121-00 881,848 0.7934 699,658.20
8025 F708 100438 LC Ferrochrome .05%C 4 x 1 54060-54 28,000 0.6610 18,508.00
8025 F708 100450 LC Ferrochrome .05%C 4 x 8M 54060-00 111,319 0.6809 75,797.11
8025 F708 100450 LC Ferrochrome .05%C 4 x 8M 53982-02 1,699 0.6809 1,156.85
8025 F708 100454 LC Ferrochrome .05%C 4 x 8M 54060-53 36,000 0.6560 23,616.00
8025 F708 100450 LC Ferrochrome .05%C 4 x 8M 54122-00 440,920 0.6851 302,074.29
8025 F708 100507 LC Ferrochrome N molten 4x8M 54078-00 11,023 1.5212 16,768.19
8025 F708 100507 LC Ferrochrome N molten 4x8M 53986-00 2,757 1.5212 4,193.95
8025 F708 102187 LC Ferrochrome .015%C 4 x 8M 53441-03 160 1.1140 178.24
8025 F708 102187 LC Ferrochrome .015%C 4 x 8M 53441-02 22,760 1.1140 25,354.64
8025 F708 102187 LC Ferrochrome .015%C 4 x 8M 53441-04 180 1.1140 200.52
8025 F708 106211 LC Ferrochrome .04%C 4 x 8M 53904-08 44,092 0.7012 30,917.31
8025 F708 106440 LC Ferrochrome .04%C 4 x 8M 54123-00 220,460 0.6816 150,265.54
8025 F718 100518 LC LN LSi FeCr(Gr. 1) 4 x 8M 53936-51 12,000 0.9960 11,952.00
8025 F718 100518 LC LN LSi FeCr(Gr. 1) 4 x 8M 53936-50 12,000 0.9960 11,952.00
8025 F718 100519 LC LN LSi FeCr(Gr. 1) 4 x 8M 53936-00 3,980 1.0510 4,182.98
8025 F718 100519 LC LN LSi FeCr(Gr. 1) 4 x 8M 54062-00 434,040 1.0510 456,176.04
8025 F718 100521 LCLNLSi FeCr 4x8M Cartech 1 54124-00 440,920 1.0523 463,980.12
8025 F718 100525 LCLNLSi FeCr 4x8M Cartech 2 54063-00 383,560 1.0483 402,085.95
8025 F718 100526 LC LN LSi FeCr Grd. 2 - 4 x 8M 53828-00 24,080 1.0213 24,592.90
8025 F718 100529 LC LN LSi FeCr Grd. 2 - 4 x 8M 53828-47 16,000 1.0280 16,448.00
8025 F718 102153 LCLNLSi FeCr 4x8M Allvac 1 53908-08 132,300 1.0336 136,745.28
8025 F718 102154 LCLNLSi FeCr 4x8M Allvac 1 53908-50 48,000 1.0590 50,832.00
8025 F718 102154 LCLNLSi FeCr 4x8M Allvac 1 53908-51 132,000 1.0590 139,788.00
8025 F718 102155 LCLNLSi FeCr 4x8M Allvac 2 53934-00 639,660 1.0471 669,787.99
8025 F718 102156 LCLNLSi FeCr 4x8M Allvac 2 53934-48 20,000 1.0340 20,680.00
8025 F718 102156 LCLNLSi FeCr 4x8M Allvac 2 53934-47 68,000 1.0340 70,312.00
8025 F718 105307 LC LN LSi FeCr Grd. 2 - 4 x 8M 53828-00 3,000 1.2400 3,720.00
8025 F718 105456 LCLNLSi FeCr(Huntng.) 4 x 8M 53935-00 99,720 1.0406 103,768.63
8025 F718 105456 LCLNLSi FeCr(Huntng.) 4 x 8M 54061-00 220,160 1.0406 229,098.50
8025 F718 105456 LCLNLSi FeCr(Huntng.) 4 x 8M 53415-00 160 1.0406 166.50
8025 F718 105457 LCLNLSi FeCr(Huntng.) 4 x 8M 53415-45 12,000 1.1513 13,815.60
8025 F718 105457 LCLNLSi FeCr(Huntng.) 4 x 8M 53935-47 32,000 1.1513 36,841.60
8025 F718 105621 LC LN LSi FeCr(Gr. 1) 4 x 8M 54062-45 6,000 1.2400 7,440.00
8025 F812 105340 LC FeCr Normal Grade 4 x 1/2 53165-12 17,650 0.1280 2,259.20
8025 F812 105341 LC FeCr Normal Grade 4 x 1/2 53165-60 4,000 0.1280 512.00
8025 Total 5,019,528 4,597,860.27
8085 F708 100395 LC Ferrochrome .015%C 4 x 8M 53441-45 4,000 1.1433 4,573.20
8085 F708 100395 LC Ferrochrome .015%C 4 x 8M 53441-02 8,000 1.1433 9,146.40
8085 F708 100421 LC Ferrochrome .025%C 4 x 8M 53855-45 8,000 0.8760 7,008.00
8085 F708 100422 LC Ferrochrome .025%C 4 x 8M 53855-00 12,000 0.8585 10,302.00
8085 F708 100454 LC Ferrochrome .05%C 4 x 8M 53547-00 8,000 0.6043 4,834.40
8085 Total 40,000 35,864.00
8120 F708 100416 LC Ferrochrome .025%C 4 x 8M 52506-11 8,567 0.8601 7,368.48
8120 F708 100417 LC Ferrochrome .025%C 4 x 8M 52506-11 2,746 0.9000 2,471.40
8120 Total 11,313 9,839.88
8155 F708 100422 LC Ferrochrome .025%C 4 x 8M 53854-53 16,000 0.8507 13,611.20
8155 Total 16,000 13,611.20
8165 F700 101135 LC Ferrochrome Pwd 50x325 53879-04 29,424 1.0577 31,121.76
8165 Total 29,424 31,121.76
8200 F708 100454 LC Ferrochrome .05%C 4 x 8M 54060-48 4,000 0.6560 2,624.00
8200 F708 100454 LC Ferrochrome .05%C 4 x 8M 54060-52 20,000 0.6560 13,120.00
8200 F718 105621 LC LN LSi FeCr(Gr. 1) 4 x 8M 53936-49 3,000 1.2400 3,720.00
8200 Total 27,000 19,464.00
8210 F708 100421 LC Ferrochrome .025%C 4 x 8M 53742-49 4,000 0.8750 3,500.00
8210 Total 4,000 3,500.00
8220 F708 100421 LC Ferrochrome .025%C 4 x 8M 53713-00 8,000 0.8967 7,173.60
8220 F708 100421 LC Ferrochrome .025%C 4 x 8M 53546-47 4,000 0.8967 3,586.80
8220 F708 100454 LC Ferrochrome .05%C 4 x 8M 53547-53 4,000 0.6541 2,616.40
8220 Total 16,000 13,376.80
8385 F700 101135 LC Ferrochrome Pwd 50x325 53879-05 40,446 1.0587 42,820.18
8385 F718 102153 LCLNLSi FeCr 4x8M Allvac 1 53908-09 132,277 1.0399 137,554.85
8385 Total 172,723 180,375.03
--------- ------------
Grand Total 5,335,988 4,905,012.94
========= ============
Warehouse Codes
---------------
8025 - Ruckert Terminal 8200 - Rock Transfer
8085 - Arrow Houston 8210 - MG Warehouse
8120 - RAM Terminals 8220 - W. A. Woods
8155 - S.H. Bell East Liverpool 8385 - In Transit (containers still
8165 - Waco (Troy) Warehouse on the water, all of which
are bound for Rukert Terminal)
ASSET PURCHASE AGREEMENT
EXHIBIT 2
Arrow Terminal
920 Mayo Shell Road
Houston, Tx 77547
(713) 673-6921 fax (713) 673-6944
Chris Morgan
M G Warehouse
9700 N Hurst St
Portland, Or 97217
(503) 283-4972 fax (503) 283-1590
Mark Gentamen
Ram Terminals
1 Fifth Street
New Kensington, Pa 15068
(724) 339-1011 fax (724) 339-4084
Jack Braun
Rock Transfer & Storage
7474 N Rockway Ct
Milwaukee, Wi 53224
(414) 355-3700 fax (414) 362-8095
Terry Hogan
Rukert Terminal
2021 S Clinton St
Baltimore, Md 21224
(410) 276-1013 fax (410) 276-5237
John Coulter
S H Bell
2217 Michigan Ave
E Liverpool, Oh 43920
(330) 385-5083 fax (330) 385-8120
Rusty Davis
Waco Warehouse
707 S Crawford
Troy, Oh 45373
(937) 339-7541 fax (937) 339-4827
Tim Arnett
W A Woods
10120 W Frontage Rd
South Gate, Ca 90280
(562) 927-1367 fax (562) 806-1859
Ron Benson