EXHIBIT 4.6
NOVAMERICAN TUBE HOLDINGS, INC.
as Purchaser
and
ISG VENTURE INC.
as Vendor
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PURCHASE AGREEMENT
June 30, 2003
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PURCHASE AGREEMENT
Purchase Agreement dated June 30, 2003, by and between NoVAMERICAN TUBE
HOLDINGS, Inc. a corporation incorporated under the laws of Delaware (the
"PURCHASER") and ISG VENTURE INC., a corporation incorporated under the laws of
Delaware (the "VENDOR").
ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS.
Where used herein or in any amendments hereto or in any communication
required or permitted to be given hereunder, the following terms shall have the
following meanings, respectively, unless the context otherwise requires:
(a) "AFFILIATE" means in respect of a Person (i) any body corporate of
which the Person beneficially owns, directly or indirectly, voting
securities carrying more than 50 per cent (50%) of the voting rights
attached to all voting securities of the body corporate for the time
being outstanding, or (ii) any partner or relatives of such Person.
(b) "AGREEMENT" means this Purchase Agreement and all instruments
supplemental hereto or in amendment or confirmation hereof; "HEREIN",
"HEREOF", "HERETO", "HEREUNDER" and similar expressions mean and refer
to this Agreement and not to any particular Article, Section or other
subdivision; "ARTICLE", "SECTION" or other subdivision of this
Agreement means and refers to the specified Article, Section or other
subdivision of this Agreement.
(c) "AUTHORIZATION" means, with respect to any Person, any order, permit,
approval, registration, waiver, licence or similar authorization of
any Governmental Entity having jurisdiction over such Person.
(d) "BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which the principal commercial banks in Montreal, Canada, or
Richfield, Ohio, are not open for business during normal business
hours.
(e) "CLOSING" means the completion of the transaction of purchase and sale
contemplated in this Agreement.
(f) "CLOSING DATE" means the date which is no later than July 7, 2003, or
such other date as may be agreed to by the Parties.
(g) "COMPANY" means BethNova Tube, LLC, a Delaware limited liability
company formed pursuant to that certain Formation and Operating
Agreement dated as of February 2, 2000 between Bethlehem Steel
Corporation and Novamerican Tube Holdings, Inc. as equal members.
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(h) "CONSENT" means the consent of a contracting party to the completion
of the transactions contemplated in this Agreement, as required by the
terms of any contract to which the Vendor or the Company is a party.
(i) "GAAP" means, at any time, accounting principles generally accepted in
the United States of America, at the relevant time applied on a basis
consistent with that of the most recently-completed financial year of
the Company.
(j) "GOVERNMENTAL ENTITY" means any (i) multinational, federal,
provincial, state, municipal, local or other governmental or public
department, central bank, court, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) any subdivision or
authority of any of the foregoing, or (iii) any quasi-governmental or
private body exercising any regulatory, expropriation or taxing
authority under or for the account of any of the above.
(k) "INTERIM PERIOD" means the period commencing on the date hereof and
ending on the Closing Date.
(l) "LAWS" means (i) all constitutions, treaties, laws, statutes, codes,
ordinances, orders, decrees, rules, regulations, and municipal
by-laws, whether domestic, foreign or international; (ii) all
judgments, orders, writs, injunctions, decisions, rulings, decrees,
and awards of any Governmental Entity; and (iii) all policies,
practices and guidelines of any Governmental Entity which, although
not actually having the force of law, are considered by such
Governmental Entity as requiring compliance as if having the force of
law, in each case binding on or affecting the Party or Person referred
to in the context in which such word is used; and "LAW" shall mean any
one of them.
(m) "LIEN" means any mortgage, charge, pledge, prior claim, hypothec,
security interest, assignment, lien (statutory or otherwise), title
retention agreement or arrangement, restrictive covenant or other
encumbrance of any nature or any other arrangement or condition which,
in substance, secures payment or performance of an obligation.
(n) "PARTIES" means the Vendor and the Purchaser and any other Person who
may become a party to this Agreement.
(o) "PERSON" means a natural person, partnership, limited liability
partnership, corporation, joint stock company, trust, unincorporated
association, joint venture or other entity or Governmental Entity, and
pronouns have a similarly extended meaning.
(p) "PURCHASER" has the meaning ascribed to it in the initial description
of the Parties hereto.
(q) "PURCHASED INTEREST" means all of the units, member loans, capital and
undistributed earnings, and any additions thereto of the Vendor in the
Company, including all of what was formerly the Bethlehem Steel
Corporation's interest in the Company, which the Vendor recently
acquired as part of the US Federal Bankruptcy Court approved asset
sale between Bethlehem Steel Corporation and the Vendor.
(r) "VENDOR" has the meaning ascribed to it in the initial description of
the Parties hereto.
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1.2 OTHER DEFINED TERMS
In addition to the defined terms in Section 1.1, each of the following
capitalized terms shall have the meaning ascribed thereto in the corresponding
Sections:
TERM SECTION
---- -------
Cash Price............................................. 2.2
Damages ............................................... 7.1
Indemnified Party...................................... 7.2
Indemnifying Party..................................... 7.2
ITA ................................................... 3.1(f)
Order ................................................. 3.1(b)
Public Statement ...................................... 9.3
Purchase Price ........................................ 2.2
Third Party Claim ..................................... 7.3(a)
1.3 GENDER AND NUMBER.
Any reference in this Agreement to gender includes all genders and words
importing the singular number only shall include the plural and vice versa.
1.4 HEADINGS, ETC.
The provision of a table of contents, the division of this Agreement into
Articles and Sections and the insertion of headings are for convenient reference
only and are not to affect its interpretation.
1.5 CURRENCY.
All references in this Agreement to dollars or to "$", unless otherwise
specifically indicated, refer to United States currency.
1.6 KNOWLEDGE.
Where any representation or warranty contained in this Agreement is
expressly qualified by reference to the knowledge of the Vendor, it shall be
deemed to refer to the collective actual knowledge of the Vendor, the members of
its board of directors, its officers and its employees, after due inquiry.
1.7 ACCOUNTING TERMS.
All accounting terms not specifically defined in this Agreement shall be
interpreted in accordance with GAAP.
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1.8 INCORPORATION OF SCHEDULES.
The schedules attached to this Agreement shall, for all purposes of this
Agreement, form an integral part of it.
ARTICLE 2
PURCHASED INTEREST AND PURCHASE PRICE
2.1 PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement, the Vendor agrees to
sell, assign and transfer to the Purchaser, and the Purchaser hereby agrees to
purchase from the Vendor, all of the Purchased Interest.
2.2 PURCHASE PRICE.
The purchase price (the "PURCHASE PRICE") payable by the Purchaser to the
Vendor for the Purchased Interest is equal to Four Million One Hundred Thousand
Dollars ($4,100,000).
2.3 PAYMENT OF THE PURCHASE PRICE.
The Purchase Price is payable by the Purchaser on the Closing Date, by way
of wire transfer of immediately available funds to the bank account designated
in SCHEDULE 2.3.
2.4 PURCHASE PRICE ALLOCATION.
The Parties agree to allocate the Purchase Price for all United States
Federal, state and local income tax purposes (including IRS Form 8594), and the
Parties further agree that they will not take any inconsistent or contrary
position therewith for any purpose. For further clarity, the Parties agree that
the allocation of the net assets acquired by the Purchaser, resulting from the
purchase of the Purchased Interest and the assets distributed to the Purchaser
by the deemed liquidation of the Company, shall be made based upon the residual
method established under the Internal Revenue Code of 1986, as amended.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF VENDOR.
The Vendor represents and warrants as follows to the Purchaser, and
acknowledges and confirms that the Purchaser is relying upon such
representations and warranties in connection with the purchase by the Purchaser
of the Purchased Interest:
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(a) INCORPORATION AND CORPORATE POWER. The Vendor is a corporation duly
incorporated and existing under the Laws of its jurisdiction of
incorporation and has the corporate power and authority to enter into
and perform its obligations under this Agreement.
(b) SUCCESSOR IN INTEREST. The Vendor acquired all of the interest in the
Company held by Bethlehem Steel Corporation, including, without
limitation, the Purchased Interest, on May 7, 2003 pursuant to an
order of the United States Bankruptcy Court for the Southern District
of New York, dated April 23, 2003 (the "ORDER"), a true copy of which
Order is attached hereto as SCHEDULE 3.1(b). The Order is in full
force and effect, all appeal periods in respect of the Order have
expired and, except for appeals that are not relevant for the purpose
of the Closing and that have or shall have no effect on the Company or
the Purchaser, no appeal has been taken or filed; to the Vendor's
knowledge, there are no proceedings pending or threatened which bring
into question the effectiveness of the Order or seek its modification
or cancellation.
(c) VALIDITY OF AGREEMENT. The execution, delivery and performance by the
Vendor of this Agreement:
(i) have been duly authorized by all necessary corporate actions on
the part of the Vendor;
(ii) do not (or would not with the giving of notice, the lapse of time
or the happening of any other event or condition) result in a
breach or a violation of, or conflict with, or allow any other
Person to exercise any rights under, any of the terms or
provisions of any contracts to which the Vendor is a party; and
(iii) will not result in the violation of any Law.
(d) EXECUTION AND BINDING OBLIGATION. This Agreement has been duly
executed and delivered by, and constitute legal, valid and binding
obligations of the Vendor, enforceable against it in accordance with
their respective terms subject only to any limitation under applicable
Laws relating to (i) bankruptcy, winding-up, insolvency,
reorganization, arrangement and other similar Laws of general
application affecting the enforcement of creditors' rights, and (ii)
the discretion that a court may exercise in the granting of equitable
remedies such as specific performance and injunction.
(e) TITLE TO PURCHASED INTEREST. The Vendor (i) is the sole owner of the
Purchased Interest, with a good title thereto, free and clear of all
Liens; (ii) has not granted any participation or other interest or
assignment, other option or rights to the Purchased Interest, or
agreed to do so, other than to the Purchaser and (iii) has not
pledged, collaterally assigned or otherwise hypothecated any interest
in the Purchased Interest or agreed to do so, other than to the
Purchaser. Upon Closing, the Purchaser will have good and valid title
to the Purchased Interest, free and clear of all Liens.
(f) NO OTHER AGREEMENT TO PURCHASE. Except for the Purchaser's rights
under this Agreement, no Person has any written or oral agreement,
option or warrant or any right or privilege (whether by Law,
pre-emptive or contractual) capable of becoming such for the purchase
or acquisition from the Vendor of any of the Purchased Interest.
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(g) NO CONSENT REQUIRED. No Consent is required for the completion of the
transactions contemplated in this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
The Purchaser represents and warrants as follows to the Vendor and
acknowledges and confirms that the Vendor is relying on such representations and
warranties in connection with the sale by the Vendor of the Purchased Interest:
(a) INCORPORATION AND CORPORATE POWER. The Purchaser is a corporation duly
incorporated and existing under the Laws of its jurisdiction of
incorporation and has the corporate power and authority to enter into
and perform its obligations under this Agreement.
(b) VALIDITY OF AGREEMENT. The execution, delivery and performance by the
Purchaser of this Agreement:
(i) have been duly authorized by all necessary corporate action on
the part of the Purchaser;
(ii) do not (or would not with the giving of notice, the lapse of time
or the happening of any other event or condition) result in a
breach or a violation of, or conflict with, any of the terms or
provisions of its constating documents or by-laws or any
contracts or instruments to which it is a party or pursuant to
which any of its assets or property may be affected; and
(iii) will not result in the violation of any Law.
(c) EXECUTION AND BINDING OBLIGATION. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against it in
accordance with its terms subject only to any limitation under
applicable Laws relating to (i) bankruptcy, winding-up, insolvency,
reorganization, arrangement and other similar Laws of general
application affecting the enforcement of creditors' rights, and (ii)
the discretion that a court may exercise in the granting of equitable
remedies such as specific performance and injunction.
3.3 NO TIME LIMITATIONS.
The representations, warranties and covenants of the Parties contained in
this Agreement shall survive the Closing and, notwithstanding the Closing and
any investigation made by or on behalf of the other Party, shall continue in
full force and effect without limitation of time.
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ARTICLE 4
PRE-CLOSING COVENANTS
4.1 NOTICE OF UNTRUE REPRESENTATION OR WARRANTY.
Vendor shall promptly notify Purchaser, and Purchaser shall promptly notify
Vendor, upon any representation or warranty made by either of them contained in
this Agreement becoming untrue or incorrect during the Interim Period. Any such
notification shall set out particulars of the untrue or incorrect representation
or warranty and details of any actions being taken by the Vendor or Purchaser,
as the case may be, to rectify that state of affairs.
ARTICLE 5
CONDITIONS OF CLOSING
5.1 CONDITIONS FOR THE BENEFIT OF PURCHASER.
The purchase and sale of the Purchased Interest is subject to the following
conditions to be fulfilled or performed at or prior to the Closing Date, which
conditions are for the exclusive benefit of Purchaser and may be waived, in
whole or in part, by Purchaser in its sole discretion:
(a) TRUTH OF REPRESENTATIONS, WARRANTIES AND PERFORMANCE OF COVENANTS. The
representations and warranties of Vendor contained in this Agreement
shall be true and correct in all material respects as of the Closing
Date with the same force and effect as if such representations and
warranties had been made on and as of such date, Vendor shall have
fulfilled or complied with all covenants contained in this Agreement
to be fulfilled or complied with by it at or prior to the Closing, and
Vendor shall have executed and delivered a certificate to that effect
in a form to be agreed to by the Parties, acting reasonably. The
receipt of such certificate and the Closing shall not constitute a
waiver by Purchaser of any of the representations and warranties or
convenants of Vendor which are contained in this Agreement.
(b) DELIVERIES. Vendor shall deliver or cause to be delivered to Purchaser
the following in form and substance satisfactory to Purchaser, acting
reasonably:
(i) all records and books of the Company then held by the Vendor;
(ii) an agreement substantially in the form set out in
SCHEDULE 5.1(b)(i) with respect to the assignment of Vendor's
member loans, capital and undistributed earnings and any
additions thereto;
(iii) the certificate referred to in Section 5.1(a);
(iv) a release from the Vendor in favour of the Company, the Purchaser
and
Novamerican Steel Inc., the whole substantially in the form
set out in SCHEDULE 5.1(b)(iv);
(v) the resignation of the managers and officers of the Company
nominated by it or Bethlehem Steel Corporation; and
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(vi) a Supply Agreement in a form satisfactory to both Parties and
their attorneys, acting reasonably.
(c) NO LEGAL ACTION. No action or proceeding shall be pending or
threatened by any Person (other than Purchaser) in any jurisdiction,
to enjoin, restrict or prohibit any of the transactions contemplated
by this Agreement.
5.2 TERMINATION BY PURCHASER.
If any of the conditions set forth in Section 5.1 have not been fulfilled
or waived at or prior to the Closing Date or any obligation or covenant of
Vendor to be performed at or prior to Closing has not been observed or performed
by such time, Purchaser may terminate this Agreement by notice in writing to
Vendor, and in such event Purchaser shall be released from all obligations save
and except for its obligations hereunder by reason of such termination under
Sections 9.3 and 9.5 which shall survive. Vendor shall only be released from its
obligations if the condition or conditions for the non-performance of which
Purchaser has terminated this Agreement are not reasonably capable of being
performed or caused to be performed by Vendor. If Purchaser waives compliance
with any of the conditions, obligations or covenants contained in this
Agreement, the waiver will be without prejudice to any of its rights of
termination in the event of non-fulfilment, non-observance or non-performance of
any other condition, obligation or covenant in whole or in part. Purchaser's
right of termination under this Article 5 is in addition to any other rights it
may have under this Agreement or otherwise, and the exercise of a right of
termination will not be an election of remedies. Except as otherwise provided
herein, nothing in Article 5 shall limit or affect any other rights or causes of
action Purchaser may have with respect to the representations, warranties,
covenants and indemnities in its favour contained in this Agreement.
5.3 CONDITIONS FOR THE BENEFIT OF VENDOR.
The purchase and sale of the Purchased Interest is subject to the following
conditions to be fulfilled or performed at or prior to the Closing, which
conditions are for the exclusive benefit of Vendor and may be waived, in whole
or in part, by Vendor in its sole discretion:
(a) TRUTH OF REPRESENTATIONS, WARRANTIES AND PERFORMANCE OF COVENANTS. The
representations and warranties of Purchaser contained in this
Agreement shall be true and correct in all material respects as of the
Closing Date with the same force and effect as if such representations
and warranties had been made on and as of such date, Purchaser shall
have fulfilled or complied with all covenants contained in this
Agreement to be fulfilled or complied with by it at or prior to the
Closing Date, and Purchaser shall have executed and delivered a
certificate to that effect in a form to be agreed to by the Parties,
acting reasonably. The receipt of such certificate and the Closing
shall not constitute a waiver of the representations and warranties of
Purchaser or of the covenants of Purchaser which are contained in this
Agreement. Upon delivery of such certificate, the representations and
warranties of Purchaser in Article 3 shall be deemed to have been made
on and as of the Closing Date with the same force and effect as if
made on and as of such date.
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(b) DELIVERIES. Purchaser shall deliver or cause to be delivered to Vendor
the following in form and substance satisfactory to Vendor, acting
reasonably:
(i) the certificate referred to in Section 5.3(a); and
(ii) a Supply Agreement in a form satisfactory to both Parties and
their attorneys, acting reasonably.
(c) NO LEGAL ACTION. No action or proceeding shall be pending or
threatened by any Person (other than Vendor) in any jurisdiction, to
enjoin, restrict or prohibit any of the transactions contemplated by
this Agreement.
5.4 TERMINATION BY VENDOR.
If any of the conditions set forth in Section 5.3 have not been fulfilled
or waived at or prior to the Closing Date or any obligation or covenant of
Purchaser to be performed at or prior to the Closing Date has not been observed
or performed by such time, Vendor may terminate this Agreement by notice in
writing to Purchaser, and in such event Vendor shall be released from all
obligations hereunder save and except for their obligations under Sections 9.3
and 9.5, which shall survive. Purchaser shall only be released from its
obligations hereunder by reason of such termination if the condition or
conditions for the non-performance of which Vendor has terminated this Agreement
are not reasonably capable of being performed or caused to be performed by
Purchaser. If Vendor waives compliance with any of the conditions, obligations
or covenants contained in this Agreement, the waiver will be without prejudice
to any of their rights of termination in the event of non-fulfilment,
non-observance or non-performance of any other condition, obligation or covenant
in whole or in part. Vendor's right of termination under this Article 5 is in
addition to any other rights it may have under this Agreement or otherwise, and
the exercise of a right of termination will not be an election of remedies.
Except as otherwise provided herein, nothing in Article 5 shall limit or affect
any other rights or causes of action Vendor may have with respect to the
representations, warranties, covenants and indemnities in its favour contained
in this Agreement.
ARTICLE 6
CLOSING
6.1 DATE, TIME AND PLACE OF CLOSING.
The completion of the transaction of purchase and sale contemplated by this
Agreement shall take place at the offices of Stikeman Elliott LLP, 1155
Xxxx-Xxxxxxxx Boulevard West, 40th floor, Xxxxxxxx, Xxxxxx X0X 0X0, at 10:00
a.m. (Montreal time) on the Closing Date or at such other place, on such other
date and at such other time as may be agreed upon in writing between Vendor and
Purchaser.
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ARTICLE 7
INDEMNIFICATION
7.1 MUTUAL INDEMNIFICATION.
The Vendor shall indemnify and save each of the Purchaser and the Company
harmless, and Purchaser shall indemnify and save the Vendor harmless, of and
from any loss, liability, claim, damage (including incidental and consequential
damage) or expense (whether or not involving a third-party claim) including
reasonable legal expenses, whether known or unknown (collectively, "Damages")
suffered by, imposed upon or asserted against the Purchaser, the Company or the
Vendor, as the case may be, as a result of, in respect of, connected with, or
arising out of, under, or pursuant to:
(a) any failure to perform or fulfil any covenant under this Agreement;
and
(b) any breach or inaccuracy of any representation or warranty contained
in this Agreement.
7.2 NOTIFICATION.
Promptly upon obtaining knowledge thereof, the Party being indemnified
hereunder (the "INDEMNIFIED PARTY") shall notify the Party responsible for
providing indemnification hereunder (the "INDEMNIFYING PARTY") of any cause
which the Indemnified Party has determined has given or could give rise to
indemnification under this Article 7. The omission so to notify the Indemnifying
Party shall not relieve the Indemnifying Party from any duty to indemnify and
hold harmless which otherwise might exist with respect to such cause unless (and
only to that extent) the omission to notify materially prejudices the ability
of the Indemnifying Party to exercise its right to defend provided in this
Article 7.
7.3 DEFENSE OF THIRD PARTY CLAIM.
(a) If any legal proceeding shall be instituted or any claim or demand
shall be asserted by a third party against the Indemnified Party (each
a "THIRD PARTY CLAIM"), then the Indemnifying Party shall have the
right, after receipt of the Indemnified Party's notice under Section
7.2 and upon giving notice to the Indemnified Party within ten (10)
calendar days of such receipt, to defend the Third Party Claim at its
own cost and expense with counsel of its own selection, provided that
(a) the Indemnified Party shall at all times have the right to fully
participate in the defense at its own expense; (b) the Third Party
Claim seeks only monetary damages and does not seek any injunctive or
other relief against the Indemnified Party; and (c) the Indemnifying
Party unconditionally acknowledges in writing its obligation to
indemnify and hold the Indemnified Party harmless with respect to the
Third Party Claim.
(b) The Indemnifying Party shall not be permitted to compromise and settle
or to cause a compromise and settlement of any Third Party Claim,
without the prior written consent of the Indemnified Party (which
shall not be unreasonably withheld), unless (a) the terms of the
compromise and settlement require only the payment of money and do not
require the Indemnified Party or the Company to admit any wrongdoing
or take or refrain from taking any action; and (b) the Indemnified
Party receives, as part of the
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compromise and settlement, a legally binding and enforceable
unconditional satisfaction or release, which is in form and substance
satisfactory to the Indemnified Party, acting reasonably, from any and
all obligations or liabilities it may have with respect to the Third
Party Claim.
(c) With respect to any Third Party Claim at the request of the
Indemnifying Party, the Indemnified Party shall make available to the
Indemnifying Party or its representatives on a timely basis all
assistance, documents, records and other materials in the possession
of the Indemnified Party, at the expense of the Indemnifying Party,
reasonably required by the Indemnifying Party for its use in defending
any such claim and shall otherwise cooperate on a timely basis with
the Indemnifying Party in the defence of such claim.
7.4 LIMITATION OF DAMAGES.
The liability of Vendor to Purchaser for Damages hereunder shall not exceed
the amount of the Purchase Price. The limitation contained in this Section 7.4
shall not apply in the case of Damages suffered by the Purchaser as a result of
Vendor's fraud or fraudulent misrepresentation.
7.5 EXCLUSIVE REMEDY.
Except for the right of termination provided in Article 5, the
indemnification provided in this Article 7 shall be the exclusive remedy for any
breach of this Agreement, with the exception of fraud, in which case the parties
shall be entitled to all remedies available at law or in equity.
ARTICLE 8
COVENANTS
8.1 CONFIDENTIALITY.
After the Closing, the Vendor will keep confidential and will not use or
disclose any information in its possession or under its control relating to the
Company or its business, affairs or assets, unless such information is or
becomes generally available to the public other than as a result of a disclosure
by the Vendor in violation of this Agreement.
8.2 NON-COMPETITION.
The Vendor agrees that neither it, nor any of its Affiliates shall,
directly or indirectly, in any capacity whatsoever, including without limitation
as an employer, principal agent, joint venturer, partner or otherwise, during
the two (2) year period following the Closing Date, (i) purchase, acquire,
construct or operate a tube mill for hydroforming products in North America, or
(ii) own or acquire more than five per cent (5%) of the equity securities of any
entity that owns or operates such a tube mill, provided however that Vendor
shall not be in breach under this Section 8.2 if it purchases or acquires,
directly or indirectly, all or any portion of any entity, the activities of
which do not consist primarily of the operation of a tube mill for hydroforming
products. Effective as of the Closing,
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Vendor and its Affiliates shall be, and Purchaser shall cause them to be
released from all obligations arising under the Formation and Operating
Agreement of the Company, including without limitation those contained in
Section 6.6
8.3 FURTHER ASSURANCES.
From time to time after the Closing Date, each Party shall, at the request
of any other Party, execute and deliver such additional conveyances, transfers
and other assurances as may be reasonably required to effectively transfer the
Purchased Interest to the Purchaser and carry out the intent of this Agreement.
ARTICLE 9
MISCELLANEOUS
9.1 NOTICES.
Any notice, direction or other communication given under this Agreement
shall be in writing and given by delivering it or sending it by facsimile or
other similar form of recorded communication (excluding by way of electronic
mail) addressed:
(a) to Purchaser or to Company at:
Novamerican Tube Holdings Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxxxxxxx X. Xxxxxxxx
Chief Operating Officer
Facsimile: (000) 000-0000
with a copy to Stikeman Elliott LLP at:
0000 Xxxx-Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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(b) to Vendor at:
ISG Venture Inc.
0000 Xxxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxx, Xxxx
00000-0000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxx, Xxxx
00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Any such communication shall be deemed to have been validly and effectively
given (i) if personally delivered, on the date of such delivery if such date is
a Business Day and such delivery was made prior to 4:00 p.m. (local time) and
otherwise on the next Business Day, or (ii) if transmitted by facsimile or
similar means of recorded communication (excluding by way of electronic mail) on
the Business Day following the date of transmission. Any Party may change its
address for service from time to time by notice given in accordance with the
foregoing and any subsequent notice shall be sent to such Party at its changed
address.
9.2 TIME OF THE ESSENCE.
Time shall be of the essence of this Agreement.
9.3 ANNOUNCEMENTS.
Each Party shall consult with the others prior to any press release or
public statement or announcement ("PUBLIC STATEMENT") with respect to the
transaction contemplated in this Agreement if such Public Statement is required
by Law or by any stock exchange or organized securities market. No Party shall
make any other announcement regarding the transaction contemplated herein
without the prior written consent of the other Parties in their sole discretion,
and the Parties shall disclose the transaction only to such of their employees
and professional advisers who have a need to know.
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9.4 THIRD PARTY BENEFICIARIES.
The Vendor and the Purchaser intend that this Agreement shall not benefit
or create any right or cause of action in, or on behalf of, any Person other
than the Parties to this Agreement and the Company and no Person, other than the
Parties to this Agreement and the Company shall be entitled to rely on the
provisions of this Agreement in any action, suit, proceeding, hearing or other
forum.
9.5 EXPENSES.
Except as otherwise provided herein, the Purchaser and the Vendor shall pay
for their own fees and expenses, incident to the negotiation, preparation and
execution of this Agreement and the agreements contemplated hereby, including,
without limitation, legal and accounting fees and expenses.
9.6 AMENDMENTS.
This Agreement may only be amended, supplemented or otherwise modified by
written agreement signed by the Vendor and the Purchaser.
9.7 WAIVER.
(1) No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar), nor
shall such waiver be binding unless executed in writing by the Party to be
bound by the waiver.
(2) No failure on the part of the Vendor or the Purchaser to exercise, and no
delay in exercising any right under this Agreement shall operate as a
waiver of such right; nor shall any single or partial exercise of any such
right preclude any other or further exercise of such right or the exercise
of any other right.
9.8 NON-MERGER.
Except as otherwise expressly provided in this Agreement, the covenants,
representations and warranties shall not merge on and shall survive the Closing
and, notwithstanding such Closing and any investigation made by or on behalf of
any Party, shall continue in full force and effect. Closing shall not prejudice
any right of one Party against any other Party in respect of anything done or
omitted under this Agreement or in respect of any right to damages or other
remedies.
9.9 ENTIRE AGREEMENT.
This Agreement together with the agreements referred to herein constitutes
the entire agreement between the Parties with respect to the transactions
contemplated in this Agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
Parties. There are no representations, warranties, covenants, conditions or
other agreements, express or implied, collateral, statutory or otherwise,
between the Parties in connection
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with the subject matter of this Agreement except as specifically set forth
herein and therein and neither Purchaser nor the Vendor has relied or is
relying on any other information, discussion or understanding in entering
into and completing the transactions contemplated in this Agreement.
9.10 SUCCESSORS AND ASSIGNS.
This Agreement shall become effective when executed by the Vendor and the
Purchaser and after that time shall be binding upon and enure to the benefit of
the Vendor, the Purchaser and their respective successors and permitted assigns.
Neither this Agreement nor any of the rights or obligations under this Agreement
shall be assignable or transferable by the Vendor without the prior written
consent of the Purchaser. The Purchaser may assign and transfer this Agreement
and any of its rights and obligations under this Agreement to an Affiliate
without the prior written consent of the Vendor, provided that the Purchaser
shall not by reason of any such assignment and transfer be released from its
obligations hereunder.
9.11 INCONSISTENCY.
This Agreement shall override the Schedules annexed hereto to the extent of
any inconsistency.
9.12 SEVERABILITY.
If any provision of this Agreement shall be determined by an arbitrator or
any court of competent jurisdiction to be illegal, invalid or unenforceable,
that provision shall be severed from this Agreement and the remaining provisions
shall continue in full force and effect.
9.13 GOVERNING LAW.
This Agreement shall be governed by and interpreted and enforced in
accordance with the Laws of the State of
Delaware, without regard to its
principles of conflicts of laws.
9.14 COUNTERPARTS.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile) and all such counterparts taken together shall be
deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF the Parties have executed this
Purchase Agreement as of
the date first mentioned above.
NOVAMERICAN TUBE HOLDINGS INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
_________________________________
Duly authorized officer
ISG VENTURE INC.
By: /s/ Xxxxxx Xxxxxxx
_________________________________
Xxxxxx Xxxxxxx
Vice President
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