Exhibit 10.18
THIS ASSET PURCHASE AGREEMENT, dated as of October 2, 2000 (the "Agreement" or
the "Asset Agreement"), is by and between ALLOY STEEL INTERNATIONAL, INC.., a
Delaware corporation ("ASI"), and XXXXXXX UNIT TRUST ("Xxxxxxx").
WHEREAS, Xxxxxxx desires to sell to ASI, and ASI desires to purchase from
Xxxxxxx, the assets of Xxxxxxx listed on Schedule A, (the "Purchased Assets"),
upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived and
the representations and warranties, conditions, covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I: PURCHASE AND SALE
SECTION 1.01. Sale and Purchase of Assets.
(1) On the date hereof Xxxxxxx shall sell, transfer, grant, convey,
assign and set over to ASI, and its successors and assigns forever, and ASI
shall purchase and receive from Xxxxxxx, all of the right, title and interest of
Xxxxxxx in, to and under the businesses, franchises, rights, claims, privileges,
and properties owned, used or held for use by Xxxxxxx exclusively or primarily
with respect to or in connection with the Arcoplate Process, of every nature and
description, tangible and intangible, wherever located and whether or not
carried on the books or records of Xxxxxxx, including:
(A) All books, records and files exclusively or primarily related to
the Purchased Assets; and
(B) All stationery, purchase orders, forms, labels, shipping
material, catalogs, brochures, art work, photographs and
advertising and promotional copy, materials and literature
relating exclusively or primarily to the Purchased Assets.
SECTION 1.02. Consideration. The aggregate purchase price for the
Purchased Assets is ONE MILLION, TWO HUNDRED FIFTY THOUSAND (1,250,000) SHARES
OF COMMON STOCK OF ASI (the "Purchase Price").
SECTION 1.03. "Purchase and Sale" Defined. The purchase and sale
transactions provided for above in this Article I are sometimes referred to
herein as the "Purchase and Sale."
ARTICLE II: REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Investment Representations:
(A) The ASI Stock is being acquired for Xxxxxxx'x own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the
Securities Act of 1933, as amended, or other applicable securities laws.
(B) Xxxxxxx is an "Accredited Investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended.
(C) Each certificate evidencing the ASI Stock subject to the terms
and conditions of this Agreement and each certificate issued in exchange
for or upon the transfer of any shares subject to the terms and conditions
of this Agreement (if such shares remain subject to the terms and
conditions of this Agreement after such transfer) shall be stamped or
otherwise imprinted with a conspicuous legend, in substantially the
following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED AND HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES
ONLY AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR
DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO ASI THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933."
ARTICLE III: CLOSING
SECTION 3.01. Closing. The closing of the Purchase and Sale and other
transactions contemplated hereby (the "Closing") shall occur on the date hereof.
ARTICLE IV: INDEMNIFICATION
SECTION 4.01. By Xxxxxxx.
(1) From and after the date hereof, Xxxxxxx shall indemnify ASI against,
and hold ASI harmless from, any and all Losses (as defined in Section 4.02)
directly or indirectly incurred, suffered, sustained or required to be paid by,
or sought to be imposed upon, ASI
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resulting from, relating to arising out of any breach of any of the
representations or warranties of the parties set forth in Article II hereof or
in any other Subject Document.
SECTION 4.02. Losses Defined. In this Agreement, the term "Losses" means and
includes all losses, claims, liabilities, damages (including, without
limitation, punitive, consequential and special damages awarded to any
third-party claimant), judgments, liabilities, payments, obligations, costs and
expenses (including, without limitation, any costs of investigation, remediation
or cleanup, and any reasonable legal fees and costs and expenses incurred after
the date hereof in defense of or in connection with any alleged or asserted
liability, payment or obligation as to which indemnification may apply
hereunder), regardless of whether or not any liability, payment, obligation or
judgment is ultimately imposed against Xxxxxxx or ASI and whether or not Xxxxxxx
or ASI are made or become parties to an action, suit or proceeding in respect
thereof, voluntarily or involuntarily.
SECTION 4.03. Notice of Claims. With respect to any matter as to which any
person or entity (the "Indemnified Person") is entitled to indemnification from
any other person or entity (the "Indemnifying Person") under this Article VI,
the Indemnified Person shall have the right, but not the obligation, to contest,
defend or litigate, and to retain counsel of its choice in connection with, any
claim, action, suit or proceeding by any third party alleged or asserted against
the Indemnified Person in respect of, resulting from, relating to or arising out
of such matter, and the costs and expenses thereof shall be subject to the
indemnification obligations of the Indemnifying Person hereunder; provided,
however, that if the Indemnifying Person acknowledges in writing its obligation
to indemnify the Indemnified Person in respect of such matter to the fullest
extent provided by this Article IV, the Indemnifying Person shall be entitled,
at its option, to assume and control the defense of such claim, action, suit or
proceeding at its expense through counsel of its choice if it gives prompt
notice of its intention to do so to the Indemnified Person. Neither an
Indemnified Person nor an Indemnifying Person shall be entitled to settle or
compromise any such claim, action, suit or proceeding without the prior written
consent of the other party hereto which consent shall not be unreasonably
withheld.
SECTION 4.04. No Punitive Damages. Notwithstanding anything to the contrary set
forth in this Agreement, no party hereto shall have any liability to any other
party hereto for any punitive, consequential or special damages by virtue of any
breach of any representation, warranty, covenant or agreement in or pursuant to
this Agreement, any Subject Document or any other agreement, document or
instrument executed and delivered pursuant hereto or in connection herewith or
the Closing; provided that the foregoing shall not be deemed to limit the
obligation of any party hereunder to indemnify for Losses constituting punitive,
consequential or special damages awarded to any third-party claimant.
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ARTICLE V: MISCELLANEOUS
SECTION 5.01. Entire Agreement. This Agreement and the other Subject Documents
contain the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof, and supersede all prior agreements,
arrangements and understandings with respect thereto.
SECTION 5.02. Notices. Any notice required by this Agreement must be given by
prepaid, first class, certified mail, return receipt requested, at such other
addresses as may be given from time to time under the terms of this notice
provision.
SECTION 5.03. Governing Law and Forum. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5.04. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective authorized officers as of the day and
year first above written.
ALLOY STEEL INTERNATIONAL, INC.
By: _________________________________
Name:
Title:
XXXXXXX UNIT TRUST
By: _________________________________
Kroko Nominees Pty. Ltd.
Name:
Title:
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Schedule A
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