1
FINAL
ASSET PURCHASE AGREEMENT
BETWEEN
XSTRATA ALUMINUM CORPORATION
AND
BERKELEY ALUMINUM, INC.
DATED AS OF
MARCH 31, 2000
2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (together with the Schedules and Exhibits
hereto, the "Agreement") dated as of March 31, 2000 is entered into by and
between Xstrata Aluminum Corporation, a Delaware corporation (the "Seller") and
Berkeley Aluminum, Inc., a Delaware corporation (the "Buyer").
RECITALS:
1. Alumax of South Carolina, Inc., a Delaware corporation ("ASC"),
Buyer and Seller (successor by merger to Glencore Primary Aluminum Company, LLC
("GPAC")) are (i) owners of an aluminum smelter and ancillary facilities in
Berkeley County, South Carolina, (ii) partners in Mt. Xxxxx Aluminum Company, a
general partnership under South Carolina law which operates the smelter and
ancillary facilities, and (iii) members in the Mt. Xxxxx Commerce Park LLC that
owns certain real property adjacent to the smelter (the foregoing assets,
facilities and land so described are collectively referred to as the "Assets");
and
2. The rights and interests of the parties as owners are set forth in
an Amended and Restated Owners Agreement dated as of January 26, 1996 among ASC,
Buyer and Seller's predecessor GPAC, as amended by First Amendment to the
Amended and Restated Owners Agreement dated as of January 26, 1996 and by
Amendment Agreement effective June 15, 1998 (the "Owners Agreement"); and
3. Seller desires to sell, convey and assign to Buyer, and Buyer
desires to purchase from Seller, all right, title and interest of Seller in the
Assets and in connection therewith Buyer is willing to assume certain specified
liabilities of Seller related thereto, all upon the terms and subject to the
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and intending to be legally
bound hereby, Seller and Buyer hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, any term used herein that is a defined
term in the Owners Agreement has the meaning specified in the Owners Agreement.
In addition to the other terms defined herein, the following definitions are set
forth in the Sections specified below and will apply throughout this Agreement:
DEFINITION SECTION
---------- -------
Accountant. Section 3.3.
Affiliate. Section 11.1.
Alumina Supply Agreement. Section 2.2.
3
ASC. Recital 1.
Assets. Recital 1.
Assumed Liabilities. Section 2.4.
Buyer. First Paragraph.
Claims. Section 4.8.
Closing. Section 10.1.
Closing Working Capital Statement. Section 3.3.
Closing Date. Section 10.1.
Effective Time. Section 10.1.
Environmental Laws. Section 2.4.
Excluded Assets. Section 2.3.
Excluded Liabilities. Section 2.4.
GPAC. Recital 1.
Hazardous Material. Section 2.4.
HSR Act. Section 4.4.
Indemnified Party. Section 11.5.
Indemnifying Party. Section 11.5.
Liens. Section 4.7.
Loss. Section 11.1.
Net Working Capital. Section 3.3.
Owners Agreement. Recital 2.
Purchased Assets. Section 2.1.
Purchase Price. Section 3.1.
Reference Working Capital Statement. Section 3.3.
-2-
4
Representatives. Section 7.2.
Seller. First Paragraph.
Third Party Claim. Section 11.5.
Threshold. Section 11.3.
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 Transfer of Assets. On the terms and subject to the conditions of
this Agreement, Seller agrees to sell, convey, assign, transfer and deliver to
Buyer, and Buyer agrees to purchase and accept from Seller, at the Closing all
of the Seller's right, title and interest in the Assets (the "Purchased
Assets"), but excluding certain assets described in Section 2.3 hereof (the
"Excluded Assets").
2.2 Purchased Assets. Subject to the provisions of Section 2.3 hereof,
the Purchased Assets specifically include the following:
(a) Seller's 23% Interest. Seller's 23% Interest as an Owner,
including, without limitation, Seller's entire interest (i) as a tenant in
common of the Plant and the Jointly-Owned Personalty and (ii) as a partner in
the Operating Partnership.
(b) Interest in Mt. Xxxxx Commerce Park. Seller's entire interest in
Mt. Xxxxx Commerce Park, LLC.
(c) Net Working Capital. All current assets of Seller included in
Seller's Net Working Capital.
(d) Alumina Supply Agreement. All of Seller's interest in that Alumina
Supply Agreement, dated as of 26 June,1996, between Glencore AG and Seller's
predecessor GPAC (the "Alumina Supply Agreement").
2.3 Excluded Assets. The Excluded Assets are the following:
(a) Name. The name Xstrata alone or in conjunction with any other
words.
(b) Personal Property Disposed Of. All tangible personal property of
Seller disposed of or consumed through the Effective Time in the ordinary course
of business of Seller or with the prior written consent of Buyer.
(c) Certain Records. Minute books and stock books of Seller or any of
its predecessors in interest.
-3-
5
(d) Insurance. All rights to insurance proceeds, except to the extent
relating to a liability assumed by Buyer pursuant to this Agreement.
(e) Rights Under This Agreement. To avoid doubt, all rights of Seller
under this Agreement, including, without limitation, the Purchase Price to be
paid by Buyer at Closing.
2.4 Liabilities.
(a) Excluded Liabilities. The Purchased Assets will be sold and
conveyed to Buyer free and clear of, and Seller will retain sole responsibility
for, any and all obligations and liabilities of Seller (except those expressly
assumed by Buyer pursuant to Section 2.4(b) below), including, without
limitation, the following liabilities:
(i) loans payable to Xstrata AG (US$63,276,424 as of the
Reference Working Capital Statement); and
(ii) loans payable to Glencore AG (US$4,700,000 and
US$3,120,236 as of the Reference Working Capital Statement); and
(iii) those accruing under the Alumina Supply Agreement; and
(iv) liabilities and obligations, if any, under Environmental
Laws arising or incurred prior to the Effective Time related to the
Purchased Assets (except to the extent that claims based upon such
liabilities and obligations are made after March 31, 2010); and
(v) except as otherwise expressly provided herein, all taxes
now or hereafter owed by Seller (collectively, the "Excluded
Liabilities").
(b) Assumed Liabilities. On the terms and subject to the conditions of
this Agreement, Buyer at Closing will assume and agree to pay, perform and
discharge when due, the following liabilities:
(i) any and all liabilities, debts and obligations of Seller
to the Operating Partnership (including, without limitation, the March
31 Payable as defined in that certain April 7, 2000 letter from Xstrata
AG to Century Aluminum Company), and
(ii) all liabilities, debts and obligations accruing from and
after the Effective Time related to the Owners Agreement and the
Alumina Supply Agreement, and
(iii) all current liabilities included in calculating Net
Working Capital as provided in Section 3.3 below, and
-4-
6
(iv) any liabilities and obligations under Environmental Laws
arising or incurred from or after the Effective Time related to the
Purchased Assets or the Owners Agreement; (collectively, the "Assumed
Liabilities").
The term "Environmental Law" means any law, and any legally binding
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to pollution or
protection of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials. The
term "Hazardous Material" means petroleum and petroleum products, by-products or
breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls ("PCB" or "PCBs") and any other chemicals, materials
or substances, in each case and to the extent regulated under any applicable
Environmental Law.
Article III
PURCHASE PRICE AND ADJUSTMENT
3.1 Purchase Price. Subject to the adjustment provided in Section 3.3,
the purchase price (the "Purchase Price") for the Purchased Assets will be
Ninety-Five Million US Dollars (US$95,000,000.00).
3.2 Payment of Purchase Price. At the Closing, the Purchase Price plus
reimbursement to Seller of all payments made to the Operating Partnership after
March 31, 2000 (less accounts receivable, if any, included in Net Working
Capital and collected by Seller after March 31, 2000), will be paid by Buyer to
Seller by wire transfer in immediately available funds to the accounts
heretofore designated by Seller in a written notice to Buyer.
3.3 Net Working Capital Adjustment. The Purchase Price shall be subject
to adjustment after the Closing as specified in this Section 3.3:
(a) As promptly as practicable, but in any event within 30
calendar days following the Closing, Seller shall cause the preparation
of, and deliver to Buyer, a working capital statement of Seller's
current assets and liabilities as of the Effective Time (the "Closing
Working Capital Statement"), which shall reflect the results of
Seller's operations through the Effective Time, but exclude the receipt
of the Purchase Price. Attached to this Agreement as Schedule 3.3 is a
working capital statement of Seller's current assets and liabilities as
of December 31, 1999 (the "Reference Working Capital Statement"), such
Reference Working Capital Statement was prepared on a basis consistent
to that applied by Seller previously in its accounts, disregards the
loans to Xstrata AG and Glencore AG referred to in Section 2.4(a)(i)
and (ii) above and also disregards any accounts receivable or payable
between Seller and the Operating Partnership and cash, but includes all
of Seller's trade receivables, trade payables, alumina inventory and
the accrued liability for the Operator's management fee. The Closing
Working Capital Statement shall be prepared on a basis consistent with
the Reference Working Capital Statement and a certificate to that
effect by Seller shall be delivered to Buyer with the Closing Working
Capital Statement.
-5-
7
(b) For the purposes of this Agreement, the term "Net Working Capital"
means trade receivables plus alumina inventory minus trade payables and
minus accrued liabilities for the Operator's management fee and also
disregards the loans to Xstrata AG and Glencore AG referred to in
Section 2.4(a)(i) and (ii) above and also disregards any accounts
receivable or payable between Seller and the Operating Partnership and
cash, which shall be retained by Seller. For example, the Net Working
Capital in the Reference Working Capital Statement is US$7,737,636.60
(excluding the Xstrata and Glencore loans payable and any accounts
receivable or payable between Seller and the Operating Partnership and
cash) but including all of Seller's trade receivables, trade payables,
alumina inventory and the accrued liability for the Operator's
management fee.
(c) If Net Working Capital in the Closing Working Capital Statement
exceeds Eight Million US Dollars (US$8,000,000.00), Buyer shall remit
such excess by wire transfer in immediately available funds to Seller
within 10 business days after delivery of the Closing Working Capital
Statement. If Net Working Capital in the Closing Working Capital
Statement is less than US$8,000,000.00, Seller shall remit the
difference by wire transfer in immediately available funds to Buyer
within 10 business days after delivery of the Closing Working Capital
Statement.
(d) If Buyer disputes the calculation of Net Working Capital in the
Closing Working Capital Statement, it shall deliver written notice of
dispute to Seller within 10 business days after delivery of the Closing
Working Capital Statement. If Buyer and Seller, with the assistance of
their respective independent auditors, cannot satisfactorily resolve
the dispute within 30 days, Buyer may then, within 10 additional
business days, refer the dispute to an internationally recognized
accounting firm (the "Accountant") that is independent of, and will be
selected by, both Seller and Buyer. Each of Seller and Buyer are
entitled to present its position to the Accountant. The decision of the
Accountant shall be rendered as soon as practicable and shall be
binding on both Seller and Buyer. If the Accountant determines that
additional money should be due to Buyer, the Accountant's fees shall be
paid by Seller. Otherwise, the Accountant's fees shall be paid by
Buyer. All amounts due shall be paid within 10 business days after
receipt of the Accountant's decision.
3.4 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Purchased Assets in accordance with Exhibit A attached hereto.
3.5 Intentionally Omitted.
Article IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
4.1 Organization and Good Standing; Governing Documents. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Seller has all requisite power and authority to own
the Purchased Assets and to conduct the operations of its business as presently
conducted.
-6-
8
4.2 Authority; Enforceability. Seller has all requisite power and
authority to execute and deliver this Agreement and to perform the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
have been duly and validly authorized by all necessary action on the part of
Seller. This Agreement has been duly executed and delivered by Seller and
constitutes a valid and binding obligation of Seller, enforceable against Seller
in accordance with its terms.
4.3 No Conflict or Breach. The execution, delivery and performance of
this Agreement do not and will not:
(a) conflict with or constitute a violation of the Articles of
Incorporation or Bylaws of Seller;
(b) conflict with or constitute a violation of any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable
to or relating to Seller or the Purchased Assets;
(c) conflict with, constitute a default under, result in a breach or
acceleration of or, except as set forth on Schedule 4.3, require notice
to or the consent of any third party under any contract, agreement,
commitment, mortgage, note, license or other instrument or obligation
to which Seller is party or by which it is bound or by which the
Purchased Assets are affected; or
(d) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on any of the Purchased Assets.
4.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by Seller do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to any governmental authority except (a) as described in Schedule
4.4 attached hereto and (b) the requirements of the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 1976, as amended ("HSR Act").
4.5 Working Capital Statements. Seller has previously delivered to
Buyer the Reference Working Capital Statement as of December 31, 1999. The
Reference Working Capital Statement
(a) is in accordance with the books and records of Seller;
(b) presents fairly the current assets and liabilities of Seller as of
the date thereof; and
(c) is prepared on a basis consistent to that applied by Seller
previously in its accounts, disregards the loans to Xstrata AG and
Glencore AG referred to in Section 2.4(a)(i) and (ii) above and also
disregards any accounts receivable or payable between Seller and the
Operating Partnership and cash, but includes all of Seller's trade
receivables, trade payables, alumina inventory and the accrued
liability for the Operator's management fee.
-7-
9
4.6 Books and Records. The books and records of Seller relating to the
Purchased Assets are true, accurate and complete and have been maintained in
accordance with International Accounting Standards applied on a consistent
basis.
4.7 Title. Subject to the Owners Agreement, Seller has good and
marketable title to all of the Purchased Assets, free and clear of any liens,
encumbrances, claims, security interests, mortgages or pledges of any nature
(collectively, "Liens") other than the Permitted Exceptions listed on Schedule C
to the title of Seller as recorded in Berkeley County, South Carolina and
updated as provided in the title search delivered to the parties in March 2000.
4.8 Litigation. There are no pending or, to the knowledge of Seller,
threatened claims, actions, suits, arbitration proceedings, inquiries, hearings,
injunctions or investigations ("Claims") against Seller or the Purchased Assets.
4.9 Brokers. No finder, broker, agent or other intermediary has acted
for or on behalf of Seller in connection with the negotiation or consummation of
this Agreement, and there are no claims for any brokerage commission, finder's
fee or similar payment due from Seller.
4.10 Alumina Inventory. The Alumina inventories set forth on the
Reference Working Capital Statement reflect historical inventory valuation of
Seller at the lower of cost or market. Such inventories are usable or saleable
in the ordinary course.
4.11 No Breach. Seller is not in breach of, and has no knowledge that
any other party thereto is in material breach of, the Owners Agreement, the
Alumina Supply Agreement or any other material agreement to which it is a party
or pursuant to which any of the Purchased Assets are bound.
4.12 Taxes. Seller has filed all tax returns with respect to the
conduct of its business or the Purchased Assets required to be filed on or
before the Closing Date and has paid all taxes due and owing. There are no
audits with any federal, state or local taxing authority related to the business
or the Purchased Assets, pending or to Seller's knowledge threatened.
4.13 Compliance with Laws. Seller is in compliance in all material
respects with laws applicable to its business or, to Seller's knowledge, the
Purchased Assets; it being understood and agreed that ASC not Seller is and has
been the Operator of the Plant throughout the entire time period that Seller had
any interest in the Plant.
4.14 Disclosure; As Is Condition. No representation, warranty or
statement made by Seller in this Agreement, or in any document furnished or to
be furnished to Buyer pursuant to this Agreement, contains or will contain any
untrue statement of a material fact, or omits or will omit to state any material
fact necessary to make the statements contained herein or therein not
misleading. Subject to the preceding sentence, the Purchased Assets are and will
be conveyed in their respective "as is" condition at time of Closing.
-8-
10
Article V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.1 Organization and Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2 Authority; Enforceability. Buyer has all requisite power and
authority to execute, deliver and perform this Agreement and transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly and
validly authorized by all necessary action on the part of Buyer. This Agreement
has been duly executed and delivered by Buyer and constitutes a valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
5.3 No Conflict or Breach. The execution, delivery and performance of
this Agreement do not and will not
(a) conflict with or constitute a violation of the Articles of
Incorporation or By-Laws of Buyer, or
(b) conflict with or constitute a violation of any law, statute,
judgment, order, decree or regulation of any legislative body, court,
administrative agency, governmental authority or arbitrator applicable to or
relating to Buyer, or
(c) conflict with, constitute a default under, result in a breach or
acceleration of or require notice to or the consent of any third party under any
contract, agreement, commitment, mortgage, note, license or other instrument or
obligation to which Buyer is party or by which it is bound.
5.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by Buyer do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to any governmental authority except the requirements of the HSR
Act.
5.5 Litigation. There are no Claims pending, or to the knowledge of
Buyer threatened, against Buyer or its operations that may affect this Agreement
or the transactions contemplated hereby.
5.6 Brokers. No finder, broker, agent or other intermediary has acted
for or on behalf of Buyer in connection with the negotiation or consummation of
this Agreement, and there are no claims for any brokerage commission, finder's
fee or similar payment due from Buyer.
5.7 Disclosure. No representation, warranty or statement made by Buyer
in this Agreement, or in any document furnished or to be furnished to Seller
pursuant to this Agreement, contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact necessary to
make the statements contained herein or therein not misleading.
-9-
11
Article VI
COVENANTS OF SELLER
Seller covenants and agrees with Buyer as follows:
6.1 Conduct of Business. Between the date of this Agreement and the Closing,
Seller shall except as otherwise specifically consented to in writing by Buyer:
(a) Subject to the Owners Agreement, conduct its operations in the
normal and customary manner in the ordinary course of business;
(b) Promptly advise Buyer of the occurrence of any event or
circumstance which affects the consummation of the transactions
contemplated by this Agreement or which, if in existence on the date of
this Agreement, would have been required to have been disclosed in a
Schedule to this Agreement;
(c) Not create or permit to exist any Lien with respect to any of the
Purchased Assets; and
(d) Not sell or dispose of any Purchased Assets, except in the ordinary
course of business.
6.2 Access and Information. Seller will permit Buyer and its counsel,
accountants and other representatives full access during normal business hours
to all the properties, assets, books, records, agreements and other documents of
Seller. Seller will furnish to Buyer and its representatives all information
concerning the Purchased Assets as Buyer may reasonably request.
6.3 No Other Solicitations. Until the earlier of the Closing Date or
the termination of this Agreement, Seller and its directors, officers,
management and representatives will not solicit or encourage any offer, proposal
or inquiry from, or engage in any discussions or negotiations with, any person
regarding the sale or other acquisition of the Purchased Assets. Seller will
notify Buyer promptly of the receipt of any offer, proposal or inquiry from any
person regarding the sale or other acquisition of the Purchased Assets.
Article VII
MUTUAL COVENANTS
AND COVENANTS OF BUYER
Each of Buyer and Seller covenants and agrees with the other as follows:
7.1 Best Efforts. Each of Buyer and Seller shall use its best efforts
to make or obtain as promptly as possible all consents, approvals,
authorizations, registrations and filings with all federal, state or local
judicial or governmental authorities or administrative agencies as are required
in connection with the consummation of the transactions contemplated by this
Agreement.
-10-
12
7.2 Confidentiality. In recognition of the confidential nature of
certain of the information which will be provided to each party by the other,
each of Buyer and Seller agrees to retain in confidence, and to require its
directors, officers, employees, consultants, professional representatives and
agents (collectively, its "Representatives") to retain in confidence all
information transmitted or disclosed to it by the other, and further agrees that
it will not use for its own benefit and will not use or disclose to any third
party, or permit the use or disclosure to any third party of, any information
obtained from or revealed by the other, except that each of Buyer and Seller may
disclose the information to those of its Representatives who need the
information for the proper performance of their assigned duties with respect to
the consummation of the transactions contemplated hereby. In making such
information available to its Representatives, each of Buyer and Seller will take
any and all precautions necessary to ensure that its Representatives use the
information only as permitted hereby. Notwithstanding anything to the contrary
in the foregoing provisions, such information may be disclosed (a) where it is
necessary to any regulatory authorities or governmental agencies, (b) if it is
required by court order or decree or applicable law, (c) if it is ascertainable
or obtained from public or published information, (d) if it is received from a
third party not known to the recipient to be under an obligation to keep such
information confidential, or (e) if the recipient can demonstrate that such
information was in its possession prior to disclosure thereof in connection with
this Agreement. If either party is required to make disclosure of any such
information by operation of law, such disclosing party will give the other party
prior notice of the making of such disclosure and will use all reasonable
efforts to afford such other party an opportunity to contest the making of such
disclosure. In the event that the Closing does not occur, each of Buyer and
Seller will immediately deliver, or cause to be delivered, to the other (without
retaining any copies thereof) any and all documents, statements or other written
information obtained from the other that contain confidential information.
7.3 New Guarantees; Releases. Buyer shall, at Closing if necessary,
issue, or cause an Affiliate to issue, substitute guarantees to replace any
guarantees from Seller and/or its Affiliates then outstanding in connection with
the Owners Agreement and, in addition, after the Closing Buyer shall use its
best efforts to obtain a release of Seller and its Affiliates from any of the
beneficiaries under the aforementioned guarantees. A guarantee of an Affiliate
shall be issued if that is necessary or appropriate to obtain the releases for
Seller and its Affiliates.
Article VIII
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of the following conditions on or
before the Closing Date, unless specifically waived in writing by Buyer prior to
the Closing Date:
8.1 Representations and Warranties. The representations and warranties
of Seller contained in this Agreement shall have been true and correct on the
date of this Agreement and shall be true and correct on the Closing Date as
though made on and as of the Closing Date.
-11-
13
8.2 Compliance with Covenants. Seller shall have duly performed and
complied with all covenants, agreements and obligations required by this
Agreement to be performed or complied with by it on or prior to the Closing.
8.3 Absence of Litigation. No action or proceeding shall be pending by
or before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement or which
would adversely affect the right of Buyer to own, operate or control the
Purchased Assets after the Closing Date.
8.4 HSR Filing/Clearance. All filings required under the HSR Act in
connection with the transactions contemplated by this Agreement shall have been
made and the waiting periods under the HSR Act shall have expired or have been
waived.
8.5 Alumina Supply Agreement. The Alumina Supply Agreement shall have
been assigned to Buyer.
Article IX
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the transaction contemplated by this
Agreement are subject to the satisfaction of each of the following conditions on
or before the Closing Date, unless specifically waived in writing by Seller
prior to the Closing:
9.1 Representations and Warranties. The representations and warranties
of Buyer contained in this Agreement shall have been true and correct on the
date of this Agreement, and shall be true and correct on the Closing Date as
though made on and as of the Closing Date.
9.2 Compliance with Covenants. Buyer shall have duly performed and
complied with all covenants, agreements and obligations required by this
Agreement to be performed or complied with by it on or prior to the Closing.
9.3 Absence of Litigation. No action or proceeding shall be pending by
or before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement.
9.4 HSR Filing/Clearance. All filings required under the HSR Act in
connection with the transactions contemplated by this Agreement shall have been
made and the waiting periods under the HSR Act shall have expired or have been
waived.
Article X
CLOSING
10.1 Closing. The closing of the sale of the Purchased Assets (the
"Closing") shall take place at the offices of Dolgenos Xxxxxx & Xxxxxx LLP, 96
Spring Street, 8th Floor, New York, New York, or such other place as may be
mutually agreed upon by the parties hereto, immediately after the execution and
delivery of this Agreement. The date of the Closing is
-12-
14
referred to as the "Closing Date." For the purposes of passage of title and risk
of loss, and other economic or financial effects of the transactions
contemplated hereby, the Closing when completed shall be deemed to have occurred
at 00:01 AM, local time, on April 1, 2000 (the "Effective Time").
10.2 Deliveries by Seller. At the Closing, Seller shall deliver or
cause to be delivered to Buyer the following:
(a) A certificate of the President, Vice President or Authorized Person
of Seller confirming the satisfaction of the conditions set forth in
Sections 8.1 and 8.2 hereof as to representations, warranties and
covenants of Seller.
(b) A copy of all corporate resolutions authorizing the execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated herein, accompanied by the certification of
the Secretary of Seller to the effect that such resolutions are in full
force and effect and have not been amended, modified or rescinded.
(c) A good standing certificate from the Secretary of State of
Delaware.
(d) The Assignment of the Alumina Supply Agreement.
(e) Deed, Bills of Sale and Assignment and such other instruments of
transfer as Buyer may request to convey and vest in Buyer all of
Seller's right, title and interest in and to all of the remaining
Purchased Assets, free and clear of all Liens.
10.3 Deliveries by Buyer. At the Closing, Buyer will deliver or cause
to be delivered to Seller the following:
(a) A certificate of the Vice President of Buyer confirming the
satisfaction of the conditions set forth in Sections 9.1 and 9.2 as to
representations, warranties and covenants of Buyer.
(b) A copy of all corporate resolutions authorizing the execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated herein, accompanied by the certification of
the Secretary of Buyer to the effect that such resolutions are in full
force and effect and have not been amended, modified or rescinded.
(c) An Instrument of Assumption of the liabilities to be assumed by
Buyer pursuant to Section 2.4(b).
(d) The Purchase Price, evidenced by a wire transfer of immediately
available funds.
(e) A copy of each new guarantee issued by Buyer or Affiliate, as the
case may be, if necessary at Closing, pursuant to Section 7.3.
10.4 Transfer Costs. Seller and Buyer shall be equally liable for and
each shall pay one-half of (a) any fees and disbursements of South Carolina
counsel in connection with the transfer of the Purchased Assets and (b) all
property transfer taxes, including, without limitation,
-13-
15
conveyance, sales, use and stamp taxes and any recording, registration, and
other fees, which become payable in connection with the Closing of the
transactions contemplated by this Agreement (but expressly excluding property
taxes applicable to ownership of the Purchased Assets after the Closing).
Seller, after the review and consent by Buyer, shall file such applications and
documents as shall permit any such tax to be assessed and paid on or prior to
the Closing Date in accordance with any available pre-sale filing procedure.
Buyer shall execute and deliver all instruments and certificates necessary to
enable Seller to comply with the foregoing. Buyer shall complete and execute a
resale or other exemption certificate with respect to the inventory items sold
hereunder, and shall provide Seller with an executed copy thereof.
10.5 Further Assurances. Seller will, at any time on or after the
Closing Date, take any and all steps reasonably requested by Buyer to confirm
title to Buyer of the Purchased Assets, and will do, execute, acknowledge and
deliver all such further acts, deeds, conveyances, powers of attorney and
assurances as may be required for the more effective transfer to Buyer, or its
successors or assigns, of any of the Purchased Assets.
Article XI
INDEMNIFICATION
11.1 Indemnification by Seller. Seller will indemnify, defend and hold
harmless Buyer and its officers, directors and Affiliates from, against, and
with respect to any and all action or cause of action, loss, damage, claim,
obligation, liability, penalty, fine, cost and expense (including, without
limitation, reasonable attorneys' and consultants' fees and costs and expenses
incurred in investigating, preparing, defending against or prosecuting any
litigation, claim, proceeding, demand or request for action by any governmental
or administrative entity), of any kind or character (a "Loss") arising out of or
in connection with any of the following:
(a) any breach of any of the representations or warranties of Seller
contained in or made pursuant to this Agreement;
(b) any failure by Seller to perform or observe, or to have performed
or observed, in full, any covenant, agreement or condition to be
performed or observed by it pursuant to this Agreement; and
(c) any and all liabilities and obligations of Seller, of any kind or
nature whatsoever, whether accrued, absolute, contingent or otherwise,
known or unknown, including the Excluded Liabilities, except for (i)
liabilities and obligations arising on or after the Closing from the
Purchased Assets and (ii) Assumed Liabilities.
The term "Affiliate" means, with respect to any specified person, any
other person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
person.
11.2 Indemnification by Buyer. Buyer will indemnify, defend and hold
harmless Seller and its officers, directors, and Affiliates from, against and
with respect to any Loss arising out of or in connection with any of the
following:
-14-
16
(a) any breach of any of the representations and warranties of Buyer
contained in or made pursuant to this Agreement;
(b) any failure by Buyer to perform or observe, or to have performed or
observed, in full, any covenant, agreement or condition to be performed
or observed by it pursuant to this Agreement;
(c) all liabilities and obligations arising from the Purchased Assets
on or after the Closing Date, and all other liabilities and obligations
expressly assumed by Buyer under Section 2.4(b), and instruments of
assumption to be delivered at the Closing;
(d) any claims by any beneficiary under any guarantees provided by
Seller or an Affiliate in connection with the Owners Agreement;
(e) Buyer's ownership and operation of the Purchased Assets on and
after the Closing Date; and
(f) any and all claims made after the tenth anniversary of the Closing
Date based upon or related to any environmental liability regardless of
when such liability arose, whether before or after the Closing.
11.3 Indemnification Threshold. Neither party will be entitled to
indemnification under Article XI hereof until such party has sustained aggregate
Losses hereunder in excess of Five Hundred Thousand US Dollars (US$500,000.00)
(the "Threshold"). If either party suffers indemnifiable Losses in excess of the
Threshold, such party will be entitled to indemnification hereunder with respect
to the aggregate amount of all such indemnifiable Losses and not merely the
amount in excess of the Threshold. Notwithstanding the foregoing, the Threshold
shall not apply to Losses incurred in connection with breaches of Section 4.7.
11.4 Time Limits on Indemnification. Neither party will have liability
to the other party for indemnification under Article XI hereof unless notice of
the Loss is given by the Indemnified Party to the Indemnifying Party within one
(1) year of the Closing Date, provided, however, (x) that with respect to Losses
arising from a breach of Section 4.12, such notice may be given within three
months after the expiration of the applicable statute of limitations period, and
(y) that the respective indemnity obligations of the parties to the other with
respect to claims made under or in connection with either Environmental Laws or
a breach of Section 4.7 continues.
11.5 Notice of Third Party Claim. (a) A party that may be entitled to
be indemnified pursuant to Section 11.1 or 11.2 (the "Indemnified Party") shall
promptly notify the other party (the "Indemnifying Party") in writing within 15
days of notice thereof of any pending or threatened claim or demand asserted by
a third party which the Indemnified Party has determined has given or could give
rise to a right of indemnification under this Agreement ("Third Party Claims")
against the Indemnified Party, describing in reasonable detail the facts and
circumstances with respect to the subject matter of such claim or demand;
provided, however, that the failure to provide such notice shall not release the
Indemnifying Party from any of its obligations under this Article XI except to
the extent the Indemnifying Party is materially prejudiced by such failure.
Subject to the Indemnifying Party's right to defend in good faith
-15-
17
Third Party Claims as hereinafter provided, the Indemnifying Party shall satisfy
or contest its obligations under this Article XI within 15 days after the
receipt of written notice thereof from the Indemnified Party.
(b) If the Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnified Party hereunder against any Losses that may
result from a Third Party Claim, then the Indemnifying Party shall be
entitled to assume and control the defense of such Third Party Claim at
its expense and through counsel of its choice if it gives notice of its
intention to do so to the Indemnified Party within 15 days of the
receipt of such notice from the Indemnified Party; provided, however,
that the Indemnified Party may participate in such defense and retain
separate counsel at its own cost and expense, without prejudice to the
rights of the parties to control the defense of their respective
interests. In the event the Indemnifying Party exercises the right to
undertake any such defense against any such Third Party Claim as
provided above, the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the
Indemnifying Party, at the Indemnifying Party's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as
is reasonably required by the Indemnifying Party. Similarly, in the
event the Indemnified Party is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnifying Party
shall cooperate with the Indemnified Party in such defense and make
available to the Indemnified Party, at the Indemnifying Party's
expense, all such witnesses, records, materials and information in the
Indemnifying Party's possession or under the Indemnifying Party's
control relating thereto as is reasonably required by the Indemnified
Party. No such Third Party Claim may be settled by the Indemnifying
Party without the written consent of the Indemnified Party (which
consent shall not be unreasonably withheld).
11.6 Claims between Buyer and Seller. Buyer and Seller shall attempt to
resolve between themselves any claims for indemnification hereunder not a result
of a Third Party Claim. The notification provisions of Section 11.5 shall also
apply to claims between Buyer and Seller. Any disputes not resolved within 90
days of notice shall be settled by arbitration administered by the American
Arbitration Association in New York City under its Commercial Arbitration Rules.
The panel of arbitrators shall consist of three arbitrators. Each party shall
select one arbitrator and the two selected arbitrators shall select a third to
complete the panel. Judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The determination of the
arbitrators shall be final and binding on the parties.
11.7 Dollar Limit on Indemnification by Seller. Notwithstanding
anything to the contrary contained in this Agreement, the maximum amount of
indemnifiable Losses which may be recovered from Seller arising out of or
resulting from the causes enumerated in Section 11.1(a)(with the exception of
any Losses relating to or arising from the breach of any representation or
warranty contained in Sections 4.1, 4.2, 4.3 and 4.7 and with the exception of
Losses relating to or arising from the Excluded Liabilities set forth in Section
2.4(a)) shall be an amount equal to Ten Million US Dollars (US$10,000,000.00).
11.8 Exclusive Remedies. Except as provided in Section 13.14 hereof
(specific performance or injunctive relief to the extent available) and except
for remedies based on fraud
-16-
18
or any breach of obligations under Section 3.3, or any side letters delivered
simultaneously with this Agreement, the parties hereto acknowledge and agree
that following the Closing the indemnification provisions of this Article XI
shall be the sole and exclusive remedies of, on the one hand, Seller against
Buyer, and on the other hand, Buyer against Seller, for any breach of the
representations, warranties, covenants or agreements.
Article XII
TERMINATION
12.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) By the mutual written consent of Seller and Buyer;
(b) By Seller (if Seller is not then in breach of any term of this
Agreement), if Buyer (i) fails to perform in any material respect its
agreements contained herein required to be performed on or prior to the
Closing Date, or (ii) materially breaches any of its representations or
warranties contained herein, which failure or breach is not cured
within ten days after Seller has notified Buyer of its intent to
terminate this Agreement pursuant to this subparagraph;
(c) By Buyer (if Buyer is not then in breach of any term of this
Agreement), if Seller (i) fails to perform in any material respect its
agreements contained herein required to be performed on or prior to the
Closing Date, or (ii) materially breaches any of its representations or
warranties contained herein , which failure or breach is not cured
within ten days after Buyer has notified Seller of its intent to
terminate this Agreement pursuant to this subparagraph;
(d) By either Seller or Buyer, if there is any order, writ, injunction
or decree of any court or governmental or regulatory agency binding on
Seller or Buyer which prohibits or restrains Seller or Buyer from
consummating the transactions contemplated hereby.
12.2 Effect on Obligations. Termination of this Agreement pursuant to
this Article shall terminate all obligation of the parties hereunder, except for
the obligations under Sections 13.4 (with respect to expenses), 13.5 (with
respect to publicity) and 7.2 (with respect to confidentiality); provided,
however, that termination pursuant to subparagraphs (b) or (c) of Section 12.1
will not relieve the defaulting or breaching party from any liability to the
other party hereto. In the event of termination under subsection (c), Buyer will
have the rights and remedies with respect to specific performance as set forth
in Section 13.14 hereof, in addition to any other remedies that may be available
at law or in equity.
-17-
19
Article XIII
MISCELLANEOUS
13.1 Intentionally Omitted.
13.2 Bulk Sales. The parties agree to waive the requirements, if any,
of all applicable bulk sales laws.
13.3 Tax Filings. Each of the parties acknowledges its understanding of
the requirement under Section 1060 of the Code for the filing by each of Form
8594 for their respective tax years in which the Closing occurs. Each of Seller
and Buyer agrees to allocate the Purchase Price among the Purchased Assets in
accordance with Exhibit A.
13.4 Expenses. Except as provided in Section 10.4 (Transfer Costs), all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense, whether or not the sale of the Purchased Assets is consummated.
13.5 Publicity. Except as may be required by law or stock exchange
rules, no party to this Agreement shall make, or cause to be made, any press
release or public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other parties, and the parties shall cooperate as
to the timing and contents of any such press release or public announcement.
Notwithstanding the foregoing, where an announcement is required by law or stock
exchange rules, the party required to make such an announcement shall notify the
other parties of such requirement (and provide a copy of such announcement to
the other parties) as soon as practicable in advance of such announcement and,
to the extent practical, take the views of the other parties in respect of such
announcement into account prior to making such announcement.
13.6 Best Efforts. Each party hereto agrees to use its best efforts to
satisfy the conditions to the Closing set forth in this Agreement and otherwise
to consummate the transactions contemplated by this Agreement.
13.7 Notices. All notices, demands and other communications made
hereunder will be in writing and shall be given either by personal delivery, by
nationally recognized overnight courier (with charges prepaid) or by telecopy
(with telephone confirmation), and will be deemed to have been given or made
when personally delivered, the day following the date deposited with such
overnight courier service or when transmitted to telecopy machine and confirmed
by telephone, addressed to the respective parties at the following addresses (or
such other address for a party as shall be specified by like notice):
If to Seller:
Xstrata Aluminum Corporation
c/o Xstrata AG
Xxxxxxxxxxxxxx 0
X.X. Xxx 000
XX-0000 Xxx
-00-
00
Xxxxxxxxxxx
Tel.: + + 00 00 000 00 00
Fax: + + 00 00 000 00 00
Attention: Chief Executive Officer
With a copy to:
Dolgenos Xxxxxx & Xxxxxx LLP
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Tel.:(000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Buyer:
Berkeley Aluminum, Inc.
c/o Century Aluminum Company
0000 Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel and
Chief Administrative Officer
with a copy to:
Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
13.8 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, applicable to contracts
executed in and to be performed entirely within that state. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any New York state or federal court sitting in the City of New
York.
13.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
13.10 Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interest or obligations
hereunder may be assigned by any of the parties hereto
-19-
21
without the prior written consent of all other parties hereto, and any purported
assignment without such consent shall be void.
13.11 Third Party Beneficiaries. None of the provisions of this
Agreement or any document contemplated hereby is intended to grant any right or
benefit to any person or entity which is not a party to this Agreement.
13.12 Headings. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of this
Agreement and shall not in any way affect the meaning or interpretation of this
Agreement.
13.13 Amendments. Any waiver, amendment, modification or supplement of
or to any term or condition of this Agreement will be effective only if in
writing and signed by all parties hereto and the parties hereto waive the right
to amend the provisions of this Section orally.
13.14 Specific Performance. Seller acknowledges that the Purchased
Assets are unique and that if Seller fails to consummate the transactions
contemplated by this Agreement such failure will cause irreparable harm to Buyer
for which there will be no adequate remedy at law. Buyer shall be entitled, in
addition to its other remedies pursuant to Article XI hereof, to specific
performance of this Agreement if Seller will, without cause, refuse to
consummate the transactions contemplated by this Agreement.
13.15 Access to Records. After the Closing, each of Buyer and Seller
will permit the other and its counsel, accountants and other representatives
reasonable access at such times as Buyer and Seller may agree to records for
accounting, financial, and tax purposes.
13.16 Severability. In the event that any provision in this Agreement
shall be determined to be invalid, illegal or unenforceable in any respect, the
remaining provisions of this Agreement will not be in any way impaired, and the
illegal, invalid or unenforceable provision shall be fully severed from this
Agreement and there will be automatically added in lieu thereof a provision as
similar in terms and intent to such severed provision as may be legal, valid and
enforceable.
13.17 Entire Agreement. This Agreement and the Schedules and Exhibits
hereto constitute the entire contract between the parties hereto pertaining to
the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings between the parties with respect to such subject
matter (including, without limitation, the letter of intent dated February 4,
2000 between Xstrata AG, an Affiliate of Seller, and Century Aluminum Company,
an Affiliate of Buyer) except that certain letter dated April 7, 2000 from
Century Aluminum Company to Xstrata AG concerning insurance proceeds and that
certain letter dated April 7, 2000 from Xstrata AG to Century Aluminum Company
concerning certain post-closing adjustment.
-20-
22
SEPARATE SIGNATURE PAGE
FOR ASSET PURCHASE AGREEMENT
BETWEEN
XSTRATA ALUMINUM CORPORATION
AND
BERKELEY ALUMINUM, INC.
DATED AS OF
MARCH 31, 2000
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed by its duly authorized officer as of the date first above written.
XSTRATA ALUMINUM CORPORATION
By: ________________________________
Title:_______________________________
BERKELEY ALUMINUM, INC.
By: ________________________________
Title:_______________________________
-21-
23
Schedule 3.3
REFERENCE WORKING CAPITAL STATEMENT AS OF 12/31/99
PREPAIDS -
TRADE PAYABLES (4,146,291.45)
ALUMINA INVENTORY 4,764,948.07
ACCRUED LIABILITIES (315,643.75)
TRADE RECEIVABLES 7,434,623.73
TOTAL: $7,737,636.60
-22-
24
EXHIBIT A
ALLOCATION OF PURCHASE PRICE
With respect to Buyer's acquisition of the Purchased Assets,
within sixty (60) calendar days following the Closing Date, the Buyer shall
deliver to Seller a schedule (the "Allocation Schedule") allocating the purchase
price among the Purchased Assets. If Seller in good faith determines that there
is a reasonable basis that any of the allocations or computations reflected on
the Allocation Schedule are materially incorrect, Seller and Buyer will attempt
in good faith to promptly agree on a revised Allocation Schedule. If the parties
cannot resolve any such dispute within thirty (30) business days of the delivery
by Seller of the Allocation Schedule to Buyer, the items remaining in dispute
shall be submitted to an Accountant. If the Accountant determines that the items
remaining in dispute are not materially incorrect, then Seller and Buyer shall
be bound by the allocation prepared by Buyer. If the Accountant determines that
one or more items remaining in dispute are materially incorrect, then Seller and
Buyer shall be bound by the allocation of such items as determined by the
Accounting Firm. The Accountant shall make any such determination within thirty
(30) business days after submission of the remaining disputed items.
