THIS ASSET PURCHASE AGREEMENT, dated as of October 2, 2000 (this
"Agreement" or the "Asset Agreement"), is by and among (1) ALLOY STEEL
INTERNATIONAL, INC., a Delaware corporation ("ASI"), (2) Gene Kostecki
("Kostecki") and (3) Alan Charles Winduss ("Winduss").
WHEREAS, Kostecki and Winduss desire to sell to ASI, and ASI desires to
purchase from Kostecki and Winduss, the 3-D Pipe Fitting Cladder process, a
computer-driven and software-based mechanical system for industrial use, 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 Kostecki and Winduss shall sell, transfer, grant,
convey, assign and set over to ASI, and its successors and assigns forever, and
ASI shall purchase and receive from Kostecki and Winduss, all of the right,
title and interest of Kostecki and Winduss in, to and under the businesses,
franchises, rights, claims, privileges, properties and assets owned, used or
held for use by Kostecki and Winduss exclusively or primarily with respect to or
in connection with the 3-D Pipe Fitting Cladder process, of every nature and
description, tangible and intangible, wherever located and whether or not
carried on the books or records of Kostecki and Winduss (the "Purchased
Assets"), including, without limitation, the following:
(A) All fixed and tangible personal property used or held for use
exclusively or primarily with respect to or in connection with the 3-D
Pipe Fitting Cladder process, including, without limitation, all physical
assets and equipment, leasehold improvements, machinery, vehicles,
furniture, fixtures, office materials and supplies and spare parts,
together with all replacements thereof, additions and alterations thereto,
and substitutions therefor;
(B) All registered and unregistered patents, patent applications,
trade names, service marks, trademarks, trademark applications, trade
dress rights, copyrights, copyright applications, inventions, trade
secrets, computer software, logos, slogans, proprietary processes and
formulae and all other proprietary technical and other information,
know-how and intellectual property rights, whether patentable or
unpatentable, owned, licensed or used by Kostecki and Winduss exclusively
or
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primarily with respect to or in connection with the 3-D Pipe Fitting
Cladder process, and all goodwill of the 3-D Pipe Fitting Cladder process;
(C) All books, records and files exclusively or primarily related to
the 3-D Pipe Fitting Cladder process or any Purchased Assets;
(D) 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 3-D Pipe Fitting Cladder process; and
(E) All rights of Kostecki and Winduss under transferable Permits
required for the operation of the 3-D Pipe Fitting Cladder process.
SECTION 1.02. Consideration. The aggregate purchase price for the
Purchased Assets is THREE MILLION FOUR HUNDRED THIRTEEN THOUSAND SEVEN HUNDRED
FIFTY (3,413,750) 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 each of Kostecki and
Winduss's 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) Kostecki and Winduss are each "Accredited Investors" 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:
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"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 AND TERMINATION
SECTION 3.01. Closing. The closing of the Purchase and Sale and other
transactions contemplated hereby (the "Closing") shall, unless another place is
agreed to by Purchaser and Seller, take place at our offices, on such date and
at such time as mutually agreed upon by Purchaser and Seller
ARTICLE IV: INDEMNIFICATION
SECTION 4.01. By Kostecki and Winduss.
(1) From and after the Date hereof, Kostecki and Winduss 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 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 Kostecki and Winduss or ASI and whether
or not Kostecki and Winduss 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
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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 VI, 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.
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 or other communication which is required or
permitted hereunder or under any other Subject Document shall be in writing and
shall be deemed to have been delivered and received (x) on the day of (or, if
not a business day, the first business day after) its having been personally
delivered or telecopied to the following address or telecopy number, (y) on the
first business day after its having been sent by overnight delivery service to
the following address, or (z) if sent by regular, registered or certified mail,
when actually received at the following address:
If to Kostecki and Winduss (at any time):
Alloy Steel International, Inc.
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42 Mercantile Way Malaga
P.O. Box 3087 Malaga D C 6945
Western Australia
with a copy to:
Gene Kostecki
40 Bramwell Road
Noranda
Western Australia 6062
with a copy to:
Alan Winduss
102 Stanley Street
Scarborough
Western Australia 6019
If to ASI:
Alloy Steel International, Inc.
42 Mercantile Way Malaga
P.O. Box 3087 Malaga D C 6945
Western Australia
with a copy to:
Silverman, Collura & Chernis, P.C.
381 Park Avenue South, Suite 1601
New York, N.Y. 10016
Attention: Martin Licht
Telecopier No. (212) 779-8858
Telephone No. (212) 779-8600
Any party may by notice change the address or telecopier number to which notices
or other communications to it are to be delivered, telecopied or sent.
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
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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:
____________________________________ ____________________________________
GENE KOSTECKI ALAN CHARLES WINDUSS
