EXHIBIT 10.3
Deed Roll No. 5510/2002
Dated 30 December 2002
NOTARIAL DEED
SHARE PURCHASE AGREEMENT
Before me, the undersigned notary public in Munich,
Xx. Xxxxxxxx Xxxxxx
with my office at Tal 12, 00000 Xxxxxx, appeared today:
1. Xx. Xxxxxxxx Xxxxxx, attorney at law, born 18 September 1937, with his
business address in Xxxxxxxxxxx Xxxxxxx 0, 00000 Xxxxxxxxxx
declaring that he is here not acting in his own name, but on the basis of a
written power of attorney the original of which have been presented at the
notarisation and a certified copy of which is attached hereto for
Metallurg Holdings Corporation, a New York corporation with principal
executive offices at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, XXX,
- hereinafter referred to as the "Seller" -
and
2. Xx. Xxxxxxx Xxxxxxx, attorney at law, born 12 February 1970, with his
business address in Xxxx-Xxxxxxxxx-Xxxx 0, 00000 Xxxxxx
declaring that he is here not acting in his own name, but on the basis of a
written power of attorney the original of which has been presented at the
notarisation and a certified copy of which is attached hereto for
Safeguard International Fund PFW, L.L.C., a Delaware company with its
registered offices in Xxxxxxxxxx, XX 00000, XXX,
- hereinafter referred to as the "Purchaser" -
The persons appearing prove their identity to the notary by presenting valid
identity cards.
The persons appearing requested notarisation in English. They stated that they
have sufficient command of, and are proficient in, the English language. The
notary, who himself is proficient in English ensured, by way of a personal
conversation, that the persons appearing are sufficiently proficient in English.
The persons appearing were advised of their right to be provided with a written
translation of this deed. They expressly waived such right.
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The persons appearing request the notary to record the following share purchase
agreement ("Agreement"):
TABLE OF CONTENTS
Preamble................................................................... 3
1. Sale and Transfer of Shares.......................................... 5
2. Purchase Price....................................................... 5
3. Representations and Warranties....................................... 7
3.1 Corporate Issues............................................ 7
3.2 Ownership of Shares......................................... 8
3.3 Liabilities and Obligations................................. 9
3.4 Ordinary Course of Business................................. 9
4. Remedy............................................................... 9
5. Confidentiality, Press Release....................................... 10
6. Miscellaneous........................................................ 10
7. Costs and Copies..................................................... 11
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PREAMBLE:
1. The Seller is the sole shareholder of GfE Gesellschaft fur
Elektrometallurgie mit beschrankter Haftung with its registered seat in
Nuremberg, registered with the commercial register of the Lower Court
Nuremberg under HR B 11697 ("Company").
2. The stated capital of the Company ("Stated Capital") amounts to DM
6,000,000 and consists of one share in the nominal amount of DM 5,951,300
and one share in the nominal amount of DM 48,700 (collectively "Shares").
The Seller is the owner of the Shares.
3. The Company as controlling company and GfE Metalle und Materialien GmbH as
well as GfE Umwelttechnik GmbH each as subordinated company have entered
into controlling and profit and loss absorption agreements (Beherrschungs-
und Ergebnisabfuhrungsvertrage) dated 21 November 2000 re GfE Metalle und
Materialien GmbH, and 19 November 2002 re GfE Umwelttechnik GmbH. The
agreements are concluded for an indefinite period and may be terminated
with six months prior notice to the end of a fiscal year, however, the
agreement with GfE Metalle und Materialien GmbH not before 1 January 2005
and the agreement with GfE Umwelttechnik GmbH not before 1 January 2007.
4. By agreement dated 24 August 2001 (Deed Roll No. 2001/312 of the notary
Xxxxxxx Xxxxx in Basle, Switzerland), the Company sold and transferred as
of 1 January 2002 all shares in KERAMED Medizintechnik GmbH to Xxxxxx
Medizinaltechnik AG ("KERAMED Sale")
5. By agreement dated 20 December 2002, the Company sold and transferred as of
31 December 2002, 24.00 hours, all shares in GfE Giesserei- und
Stahlwerksbedarf GmbH to Sudamin Recycling GmbH & Xx.XX, Essen
("Giesserei Sale").
6. The Company is the owner of the following real estate in Nuremberg:
(a) Land Register of Hofen, File 152, Folio 4278, Lot No. 863/2 (713 sqm);
(b) Land Register of Hofen, File 152, Folio 4277, Lot No. 876/1 (115 sqm),
Lot No. 876/2 (1,167 sqm), Lot No. 876/3 (130 sqm), Lot No. 876
(29,327 sqm);
(c) Land Register of Hofen, File 512, Folio 4276, Lot No. 867/11 (695
sqm), Lot No. 879/2 (333 sqm), Xxx Xx. 000 (39,573 sqm);
(d) Land Register of Hofen, File 152, Folio 4275, Lot No. 879/10 (5,595
sqm), Xxx Xx. 000 (3,641 sqm);
(e) Land Register of Hofen, File 152, Folio 4274, Lot No. 861/4 (355 sqm),
Lot No. 861/3 (5,120 sqm);
(f) Land Register of Hofen, File 151, Folio 4238, Lot No. 867/18 (56 sqm)
of which the company owns 2/3.
(g) The real property under letters (a) to (e) is encumbered with land
charges in favor of certain banks.
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(h) Xxx Xx. 000/0, Xxx Xx. 000/0, Xxx Xx. 000/0 and Lot No. 867/18 are
encumbered with building leases (Erbbaurechtsvertragen).
7. The Company has entered into the following loan agreements and collateral
agreements:
(a) The Company entered into two loan agreements dated 24 September 1998
(DM 1,010,000.00) and dated 4 May 1999 (Euro 4,596,514.00) with IKB
Deutsche Industriebank AG ("IKB Loans"). Under the IKB Loans an amount
of Euro 3,834,618.00 is outstanding as of 31 December 2002.
(b) The Company entered into a Loan Agreement with Dresdner Bank AG
("Dresdner Bank Loan"). Under the Dresdner Bank Loan an amount of Euro
81,551.00 is outstanding as of 31 December 2002.
(c) Metallurg, Inc. granted to the Company a loan in the amount of US-$ 4
million ("Metallurg Loan"). This loan has been fully repaid on 14
January 2002.
(d) Metallurg, Inc. and the Company on the one side and Bank Mendes Xxxx
N.V. on the other side had entered into an interest set-off agreement
dated 30 September 1998 ("Interest Set-off Agreement"). The Interest
Set-off Agreement has been terminated as of 27 December 2002, and
neither Metallurg, Inc. nor Bank Mendes Xxxx N.V. nor any third party
has any claims out of or in connection with the Interest Set-off
Agreement against the Company and/or its affiliated companies.
(e) Metallurg, Inc., Shieldalloy Metallurgical Corporation and Metallurg
International Resources, Inc. as borrowers (the "Borrowers") and
Metallurg Services, Inc., MIR (China), Inc., and the Seller as
guarantors on the one side and Fleet National Bank, National Bank of
Canada and Bank of Scotland (the "Banks") on the other side as lenders
entered into a loan agreement dated 29 October 1999, as amended from
time to time, for the last time by the Fifth Amendment dated 20
December 2002 ("FNB-Metallurg Loan"). As part of the obligations under
the FNB-Metallurg Loan, the Seller pledged by agreement dated 15
August 2001 (Deed Roll No. 1885/2001 of notary Xx. Xxxxxxx Xxxxxxxxxx,
Dusseldorf), 65% of its shares held in the Company to the Banks
("Metallurg Pledge Agreement"). The Metallurg Pledge Agreement has
been terminated by the Agreement on Release of Pledge dated 13
December 2001 subject to certain conditions which have been complied
with. As a result the shares in the Company are not subject to any
encumbrances under or in connection with the Metallurg Pledge
Agreement.
(f) The Company, GfE Umwelttechnik GmbH, GfE Giesserei- und
Stahlwerksbedarf GmbH, GfE Metalle und Materialien GmbH and KERAMED
Medizintechnik GmbH had entered into a loan agreement with Fleet
National Bank dated 18 October 1997 (Deed Roll No. 100/1997 of notary
Xx. Xxxxxx Xxxx, Frankfurt am Main) ("FNB-GfE Loan") for a loan amount
not to exceed DM 20.5 million. The FNB-GfE Loan has been amended by
the First Amendment dated 15 August 1998, the Second Amendment dated
16 November 1998, the Third Amendment dated 29 October 1999 and the
Fourth Amendment dated 25 June 2001. As part of the obligations under
the FNB-GfE Loan, the Company pledged 100% of its shares held in (i)
GfE Umwelttechnik GmbH, (ii) GfE Giesserei- und Stahlwerksbedarf
GmbH, (iii) GfE Metalle und Materialien GmbH, and (iv) KERAMED
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Medizintechnik GmbH to Fleet National Bank ("GfE Pledge Agreement").
Furthermore, as security for the FNB-GfE Loan the Company, GfE
Umwelttechnik GmbH , GfE Giesserei- und Stahlwerksbedarf GmbH, GfE
Metalle und Materialien GmbH and KERAMED Medizintechnik GmbH (jointly
the "GfE Group Companies") entered into separate global security
assignment agreements (Globalsicherungsabtretungsvertrage) and
security transfer agreements (Sicherungsubereignungsvertrage) on 20
October 1997 (jointly the "Security Agreements") regarding the
assignment of receivables, revenues and claims as well as the transfer
and assignment of title in stock of raw materials, supplies,
semi-finished and finished products to Fleet National Bank. In
addition, the Company has entered into a guarantee dated 20 October
1997 securing the due and punctual payment of all principal, interest,
fees and all other sums and amounts payable from time to time by any
of the GfE Group Companies to Fleet National Bank and to any other
possible future lender under the terms of the FNB-GfE Loan ("Holding
Guarantee"). The FNB-GfE Loan has been terminated as of 13 December
2001 and there is no payment outstanding by the Company and/or any of
the GfE Group Companies under the FNB-GfE Loan. The GfE Pledge
Agreement, the Security Agreements and the Holding Guarantee have been
terminated as of 13 December 2001 and as a result the shares in the
GfE Group Companies are not subject to any encumbrances under or in
connection with the GfE Pledge Agreement.
(g) The Company has entered into a loan agreement with Metallurg, Inc. on
20 December 2002 concerning a loan amount of US-$ 7 million. A partial
amount of US-$ 6 million has been subordinated by Metallurg, Inc.
(Rangrucktrittserklarung).
NOW, THEREFORE, the parties hereto agree as follows:
1. SALE AND TRANSFER OF SHARES
1.1 Upon the terms and conditions of this Agreement the Seller herewith sells
and assigns the Shares to the Purchaser as of 31 December 2002, 24.00 hours
("Effective Date"). The Purchaser accepts such sale and assignment.
1.2 Shares sold and assigned include all ancillary rights, in particular,
without limitation, the voting rights and the right to dividends for all
profits of prior business years not distributed and of the current business
year.
2. PURCHASE PRICE
2.1 Subject to sec. 2.2 below the purchase price for the Shares ("Purchase
Price") currently amounts to EUR 1.00 (in words: one Euro) and is due on
the Effective Date.
2.2 The Purchase Price shall be adjusted according to the following provisions:
(a) In case of a sale and transfer of all or a portion of the shares in
GfE Medizintechnik GmbH (AG Nuremberg, HR B 18995) by the Company to a
third party ("Medizintechnik Sale"), the Purchaser shall pay to the
Seller an additional
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purchase price amounting to 3% of the net consideration for the shares
in GfE Medizintechnik GmbH (i.e. after deduction of all transaction
costs resulting from the Medizintechnik Sale and after deduction of
any debts of GfE Medizintechnik GmbH not assumed by the buyer in
connection with the Medizintechnik Sale) to be received by the Company
("Purchase Price Adjustment"). In the event of an indirect sale and
transfer of all or a portion of the legal and beneficial interest in
GfE Medizintechnik GmbH by the Purchaser via a sale and transfer of
shares in the Company ("Indirect Medizintechnik Sale"), sentence 1 of
this letter (a) shall apply accordingly with the proviso that the
Seller and the Purchaser shall - based on relevant fair market values
- agree on the portion of the consideration for the Indirect
Medizintechnik Sale which has to be allocated as net consideration for
shares in GfE Medizintechnik GmbH ("Allocation") If the parties are
unable to agree on an Allocation within one month after the
effectiveness of an Indirect Medizintechnik Sale the parties shall
appoint an auditor of international standing as arbitrator
(Schiedsgutachter) according to sec. 317 et. seq. German Civil Code
(BGB) ("Arbitrator"). The decision of the Arbitrator shall be binding
between the Seller and the Purchaser upon the receipt of its decision
by the Seller and the Purchaser. If the parties cannot agree on an
Arbitrator within one more month each of the parties is entitled to
ask the President of the Chamber of Industry and Commerce (IHK) in
Nuremberg to appoint an Arbitrator. The costs of the Arbitrator shall
be borne by the Seller and the Purchaser in relation to their
respective losing or winning ratios in accordance with the principles
set forth in sec. 91 et seq. German Code on Civil Procedure ("ZPO").
(b) The Purchaser is obliged to notify the Seller in writing of the
Medizintechnik Sale or the Indirect Medizintechnik Sale within three
days after the execution of a respective sale and purchase agreement
forwarding a copy thereof. Any payment on a Purchase Price Adjustment
shall follow the payment terms of the Medizintechnik Sale agreement or
the Indirect Medizintechnik Sale agreement subject to the provisos
that (i) payments shall be due within three working days from the
actual receipt of a consideration for the Medizintechnik Sale or the
Indirect Medizintechnik Sale by the Company or the Purchaser,
respectively, (ii) payments shall not exceed 3% of the amounts
actually received by the Company or the Purchaser, respectively, from
time to time and (iii) payments shall not exceed a total of 3% of the
net consideration as defined in the first sentence of letter (a)
above, (iv) and in case of an Indirect Medizintechnik Sale no payment
on a Purchase Price Adjustment shall be due prior to one week post the
agreement of the Seller and the Purchaser on the Allocation or after
the receipt of the binding decision prepared by the Arbitrator,
whichever is the earlier.
(c) Subject to letter (d) below, the purchase price shall not be adjusted
in case the Purchaser or any of its affiliated companies is required,
in order to avoid over-indebtedness or insolvency of the receiving
company, to make cash investments (the "Equity Investment") of at
least US-$2.1 million into the Company or any of the Company's
directly or indirectly owned subsidiaries on or before 31 December
2004 whereby the loan in the amount of US-$ 1 million granted by
Safeguard International Fund in December 2002 to the Company is
considered as Equity Investment only if converted partially or in full
into statutory capital and/or into capital surplus (Kapitalrucklage).
Any further Equity Investment can, at the discretion of the Purchaser,
be made partially or in full either via statutory capital or payments
into the capital surplus.
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(d) Irrespective of whether the Purchaser or any of its affiliated
companies has made an Equity Investment in the amount of US-$ 2.1
million the Seller is entitled to the Purchase Price Adjustment
(subject to letter (e) below) if the Seller, at its sole option, has
reimbursed the Purchaser within 30 calendar days from payment of an
Equity Investment, but not earlier than 30 calendar days from the
Effective Date, an amount in cash equal to 3% of the actual Equity
Investment.
(e) Subject to letters (c) and (d) above, in case the Equity Investment of
the Purchaser is less than US-$ 2.1 million, the Purchase Price
Adjustment shall be reduced on a pro rata basis.
2.3 The payment of the Purchase Price and the Purchase Price Adjustment shall
be made in US currency, in immediately available funds, on the bank account
of the Seller with Fleet National Bank, 000 Xxxxxxx Xxxxxx, Xxxxxx XX
00000, XXX bank (sort code 000000000), account no. 551-60474.
3. REPRESENTATIONS AND WARRANTIES
The Seller hereby represents and warrants by way of an independent
guarantee within the meaning of sec. 311 (1) BGB that the statements below
are true and correct as of the date of this Agreement and as of the
Effective Date, unless explicitly provided otherwise below. The parties are
in agreement that the representations and warranties under this sec. 3
shall not be regarded as a guarantee in the meaning of sec. 444 BGB
(Beschaffenheitsgarantie). Sec. 444 BGB shall therefore not apply. The
scope of the Seller's liability for a breach of a representation or
warranty shall be determined exclusively by this Agreement and is provided
for in secs. 3 and 4 of this Agreement.
3.1 Corporate issues
(a) The Company is a Limited Liability Company duly incorporated and
validly existing under the laws of the Federal Republic of Germany.
(b) The statements in clause 1 through 5 of the Preamble pertaining to the
Company are true and correct.
(c) There are no shareholders' resolutions relating to the Company which
would have to be registered with the commercial register but have not
yet been registered nor any additional agreements regarding the
constitution and organisation of the Company. No insolvency or
composition or equivalent proceedings have been opened in any
jurisdiction in respect of the Company; the Company is neither
over-indebted nor insolvent.
(d) As of the Effective Date, the Company holds the following
participations in the following legal entities:
(i) 100% of the share capital in the nominal amount of DM 1,000,000
in GfE Metalle und Materialien GmbH (AG Nuremberg, HR B 13685)
(ii) 100% of the share capital in the nominal amount of EUR 100,000 in
GfE Medizintechnik GmbH (AG Nuremberg, HR B 18995)
(iii) 100% of the share capital in the nominal amount of DM 50,000 in
GfE Umwelttechnik GmbH (AG Nuremberg, HR B 11176), which holds
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(1) 50% of the share capital in the nominal amount of DM 100,000
in INTERVAN Vanadium-Recycling GmbH (AG Nuremberg, HR B
14330). The liquidation of INTERVAN Vanadium-Recycling GmbH
was resolved on 18 November 2002;
(2) 60% of the share capital in RECOVAN SpA (Catania, Italy).
This company is in liquidation proceedings with no recovery
expected.
(3) 24.9% of the share capital in the nominal amount of Euro
25,000 in Metrex2 GmbH, formed on 7 January 2002, but not
yet registered with the commercial register.
(iv) 75% of the share capital in the nominal amount of DM 1,000,000 in
RZM Recyclingzentrum Mittelfranken GmbH (AG Nuremberg, HR B
12721), of which an amount of DM 175,967 has been paid in.
(v) 70% of the share capital in Somikivu Societe Miniere du Kivu
(Goma, Zaire); these shares are of no stable value and therefore
have been written off completely.
(vi) 28.6% of the share capital in HERA Hydrogen Storage Systems, Inc.
(Montreal, Canada).
The aforementioned participations held by the Company and the
participations held by the Company's subsidiaries are hereinafter
collectively referred to as the "Participations".
(e) The Company, and the Company's subsidiaries, respectively, are the
legal and beneficial owner of the Participations and the
Participations are not encumbered with any third party rights.
(f) No insolvency or composition or equivalent proceedings have been
opened in any jurisdiction in respect of any of the Participations;
none of the Participations is over-indebted or insolvent.
3.2 Ownership of Shares
(a) The statements in clause 1 and 2 of the Preamble concerning the
shareholding of the Seller in the Company are true and correct. The
Seller is the legal and beneficial owner of the Shares, which are free
of any encumbrances or any other rights for the benefit of third
parties. The Seller has the right and the power to freely dispose of
the Shares without requiring the consent of any third party for such
disposal or violating the right of any third party.
(b) There are no trust agreements or any agreements of a similar kind
(e.g. silent participations) with respect to the Shares.
(c) The Stated Capital is fully paid in and no repayments have been made.
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3.3 Liabilities and Obligations
(a) The Company has no pending, threatening or outstanding liabilities and
obligations under the KERAMED Sale except guarantees for possible
product liability claims (expiring 30 September 2003) in a total
amount of Euro 1.9 million.
(b) The statements in Clause 7 of the Preamble concerning the IKB Loans,
the Dresdner Bank Loan, the Metallurg Loan, the Interest Set-off
Agreement, the FNB-Metallurg Loan, the Metallurg Pledge Agreement, the
FNB-GfE Loan, the GfE Pledge Agreement, the Security Agreements and
the Holding Guarantee are true and correct.
3.4 Ordinary Course of Business
From the date hereof until the Effective Date the course of the Company's
ordinary business has 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 Company have occurred. No profit distributions, including provisional
and hidden distributions, will be made from the date hereof until the
Effective Date, nor have any hidden reserves been dissolved or withdrawn.
4. REMEDY
4.1 In the event of an incorrectness of a representation or warranty in sec. 3
above the Seller shall be liable to put the Purchaser in the position it
would have been in if the representation or warranty had not been breached,
either (i) by way of restitution in kind (Naturalrestitution) or (ii) by
payment of the amount of money necessary to restore the damage by
non-performance (Schadensersatz).
4.2 The obligations of the Seller under sec. 4.1 above or any other claims of
the Purchaser due to a breach of any representation or warranty set forth
in sec. 3 above shall not exist if and to the extent that (i) the Purchaser
receives a compensation for such a loss, damage or non-fulfilment of a
relevant representation or warranty by a third party (e.g. an insurance
held by or for the benefit of the Company), or (ii) the Purchaser receives
any benefit out of a breach of sec. 3 above, be it under this Agreement or
otherwise, or the Purchaser receives such benefits against third parties.
4.3 All of the Purchaser's rights and claims regarding (i) voidance
(Anfechtung) pursuant to Sections 119 (1) and (2) BGB, (ii) cessation of
contractual basis (Storung der Geschaftsgrundlage) pursuant to Section 313
BGB, (iii) re-performance (Nacherfullung) pursuant to Section 437 no. 1 BGB
or otherwise (iv) rescission of contract (Rucktritt vom Vertrag) pursuant
to Section 437 no. 2 BGB or Section 324 BGB or otherwise, (v) reduction of
purchase price (Minderung) pursuant to Sections 437 no. 2 BGB, (vi) claims
for damages (Schadensersatz) pursuant to Sections 437 no. 3 BGB or Section
282 BGB or Section 280 BGB or otherwise and (vii) restitution of frustrated
expenses (Ersatz vergeblicher Aufwendungen) pursuant to Section 437 no. 3
BGB, are herewith excluded and waived by the Purchaser. The Seller hereby
accepts such waiver. This shall not apply for the Purchaser's rights and
claims resulting from wilful (Vorsatz) violations of obligations or based
on fraudulent acts (Arglist) by the Seller.
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4.4 Claims of the Purchaser arising out of this Agreement shall become
time-barred (verjahren) 2 (two) years after the Effective Date with the
exception of any claim of the Purchaser arising from an incorrectness of a
statement under sec. 3.2 above which shall become time-barred 10 (ten)
years after the Effective Date. With the exception of any claim of the
Purchaser arising from an incorrectness of a statement under sec. 3.2
and/or sec. 3.3 letter (b) above, the Seller's liability vis-a-vis the
Purchaser hereunder shall in no case exceed US-$ 500,000.
4.5 Section 442 BGB shall apply neither directly nor indirectly.
5. CONFIDENTIALITY, PRESS RELEASE
5.1 Until the Effective Date the parties shall keep strictly confidential
vis-a-vis third parties the fact that they have entered into this
Agreement.
5.2 After the Effective Date the parties will mutually agree on a press release
regarding the sale and assignment of the Shares.
6. MISCELLANEOUS
6.1 Where a German term has been inserted in italics it alone (and not the
English term to which it relates) shall be authoritative for the purpose of
the interpretation of the relevant English term in this Agreement.
6.2 Each party to this Agreement bears its own costs and the costs of its
advisers. The costs of the notarial recording of this Agreement shall be
borne by the Purchaser. Any transaction costs triggered by the conclusion
or consummation of this Agreement shall, as between the parties, be borne
by the Purchaser.
6.3 Any amendments of or changes to this Agreement, including this provision,
have to be made in writing to become effective, unless stricter form is
required by law.
6.4 Any rights under this Agreement and this Agreement as a whole can only be
assigned or transferred to third parties with the prior written consent of
all other parties.
6.5 Unless otherwise specified in this Agreement, all notices and other
communications hereunder shall be in writing (in English or German) and
shall be deemed duly given and delivered if (i) delivered by messenger,
(ii) mailed by registered or certified mail, (iii) transmitted by
commercial courier service or (iv) sent by telecopy or by e-mail to the
respective other party at the address shown below (or at such other address
as such party shall from time to time specify by written notice).
If to the Seller: with a fax copy to:
Xx Xxxxx Xxxx Xx Xxxxxxxx Xxxxxx
0 Xxxx 00xx Xxxxxx Elberfelder Strasse 4
New York, NY 10017, XXX 00000 Dusseldorf
Fax: #1-212- 000-0000 Fax: #00-000-000000
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If to the Purchaser: with a fax copy to:
Mr Gerd Wionski Xx Xxxx Xxxxxxxxxx-Xxxxxx
Safeguard International Management GmbH Lovells
Liebigstrasse 33 Karl-Scharnagl-Ring 5
60323 Xxxxxxxxx xx Xxxx 00000 Xxxxxx
Fax: #00-00-00000-000 Fax: #00-00-00000-000
6.6 Should any provision of this Agreement be held wholly or in part invalid or
unenforceable, the validity or enforceability of the other provisions shall
not be affected thereby. The invalid or unenforceable provisions shall be
replaced, in the form required by law, by such valid and enforceable
provision which serves best the economic interest of the contracting
parties originally pursued by the invalid or unenforceable provision. The
same applies in case of an omission in this Agreement.
6.7 Working days shall be those prevailing in Munich.
6.8 Affiliated companies shall mean companies affiliated within the meaning of
sec. 15 seq. German Stock Corporation Act (AktG).
6.9 This Agreement shall be governed by and be construed under the laws of
Germany excluding the laws governing conflicts of law. Exclusive venue for
all disputes arising under or in connection with this Agreement shall be
with the District Court Munich I.
6.10 As domestic agent authorised to accept service of summons, complaints and
briefs (inlandischer Zustellungsbevollmachtigter) the Seller hereby
appoints Xx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx Xxx. 0, 00000 Xxxxxxxxxx, and the
Purchaser hereby appoints Xx Xxxx Xxxxxxxxxx-Xxxxxx, Lovells,
Xxxx-Xxxxxxxxx-Xxxx 0, 00000 Xxxxxx.
6.11 The Seller hereby authorise (bevollmachtigen) the Purchaser, with exemption
from the restrictions under sec. 181 BGB and with the right to grant
sub-power of attorney, to make and receive all declarations necessary or
expedient to produce documentation evidencing the termination of,
cancellation of and/or release from the FNB-Metallurg Loan, the Metallurg
Pledge Agreement, the FNB-GfE Loan, the GfE Pledge Agreement, the Security
Agreements and the Holding Guarantee with the respective parties.
6.12 Based on a shareholders' resolution of the Seller being the sole
shareholder of the Company on the consent to the assignment of the Shares
the management of the Company has declared such consent according to sec. 4
of the articles of association of the Company.
7. COSTS AND COPIES
7.1 The costs of this deed are borne by the Purchaser.
7.2 Of this deed receive
Counterparts:
- the parties
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- the Company for the purpose of notification under sec. 16 Limited
Liability Companies Act
Certified Copies:
- tax authorities in Nuremberg competent for the assessment of real
estate transfer tax
- Lovells, attn. Xx. Xxxx Xxxxxxxxxx-Xxxxxxx, Xxxx-Xxxxxxxxx-Xxxx 0,
00000 Xxxxxx
- Xx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx Xxx. 0, 00000 Xxxxxxxxxx
This notarial deed has been read aloud
to the persons appearing by the notary
public, approved by them and signed by
the persons appearing and the notary
public as follows:
