-1-
EXHIBIT 2.1
AGREEMENT
between
1. IMCO Recycling Holding B.V. ("IMCO Holding"),
2. VAW-IMCO ▇▇▇▇ und Recycling GmbH ("Company")
- on the one side -
and
3. Hydro Aluminium Deutschland GmbH ("HAD") prior to 17 June 2002 acting under
the company name of VAW aluminium AG), ▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇(▇▇▇▇)▇ ▇-▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
- on the other side -
IMCO Holding and HAD are hereinafter also sometimes referred collectively as the
"Shareholders" and the term "Parties" shall mean IMCO Holding, the Company and
HAD.
WHEREAS, IMCO Recycling Inc. ("IMCO") and HAD on 3 April 1996 concluded
a Joint Venture Agreement resulting in the formation of the Company pursuant to
the Articles of Association that was attached to the Joint Venture Agreement as
Exhibit 2. Upon formation, HAD and IMCO each had one-half (50 %) ownership of
the shares in the Company. IMCO transferred all of its shares in the Company to
IMCO Holding. In addition to the Joint Venture Agreement and the Articles of
Association, a number of other agreements exist between the Company and HAD.
LEGEND:
------
* Material has been omitted pursuant to a request for confidential treatment.
The material has been filed separately with the Securities and Exchange
Commision.
-2-
WHEREAS, on 15 March 2002 Norsk Hydro acquired a one hundred percent (100%)
participation in HAD. Subsequent to this acquisition, during the Shareholders
meeting held on 10 June 2002, it was resolved by the votes cast by IMCO Holding
that the Company would redeem a partial share of HAD's shareholdings in the
Company in the nominal amount of (euro) 5,114,500.00 according to (S) 6 para.
(1), (2) and (4) of the Articles of Association. It was further resolved that
the remaining part of HAD's shareholdings in the Company in the nominal amount
of (euro) 500.00 would be transferred to IMCO Holding according to (S) 6 para.
(2) of the Articles of Association. By letter of the same day, the redemption
was declared by the Company's management pursuant to (S) 6 para. of the Articles
of Association.
WHEREAS, in accordance with (S) 9 of the Articles of Association, the
withdrawing (outgoing) shareholder shall receive the value of its shareholdings
as compensation (hereinafter the "Compensation Value"). The Compensation Value
is to be determined on the basis of the Company's earning capacity value
("Ertragswertmethode") pursuant to Stellungnahme HFA 2/83 of the Institut der
Wirtschaftsprufer. In accordance with this (S) 9, each of the Shareholders had
an auditing firm submit a valuation opinion of the Company under HFA 2/83.
*
-3-
* The Shareholders made the appointment with an engagement letter dated 16 July
2002 (hereinafter the "Schiedsgutachterverfahren"). On 30 September 2002, in the
course of a meeting which was attended by representatives of all of the Parties,
the Schiedsgutachter presented the preliminary results of its work and then in
October, 2002, issued a preliminary valuation opinion that calculates the value
of the Company as (euro) 60,815,000.00 on 01 April 2002, the effective date of
the valuation and hereinafter referred to as the "Valuation Date". Accordingly,
the Compensation Value would be (euro) 30,407,500.00. *
WHEREAS, *
-4-
*
WHEREAS, the Parties have agreed that it is in their best interest (1) to
agree to (euro) 30,407,500.00 as the Compensation Value to be paid to HAD with
binding effect *
NOW THEREFORE, on the basis of the aforesaid, it is agreed as follows:
1. The Compensation Value shall hereby be established on the basis of
a (euro) 60,815,000.00 valuation of the Company. As a result, the Parties
hereby agree and fix the Compensation Value pursuant to (S) 9 (3) of the
Articles of Association in the amount of (euro) 30,407,500.00. This
Compensation Value is fixed for all purposes as a result of a free and
final agreement between the Parties. The Parties, insofar as legally
permissible, hereby exclude each and any form of revision, adjustment,
contestation, adaptation or replacement whether by means of judicial
proceedings or legal proceedings out of court; in particular a contestation
on the basis of misapprehension or for other reasons including a
contestation according to (S) 318 of the German Civil Code ((S) 318 des
deutschen BGB), an adaptation on the basis of frustration of contract
(Anpassung wegen Wegfalls oder wesentlicher Veranderung der
Geschaftsgrundlage) and an assertion of an obvious incorrectness of the
-5-
determination and a request for a determination by the court according to
(S) 319 of the German Civil Code (Geltendmachung der offenbaren
Unrichtigkeit und Antrag nach (S) 319 BGB) shall be excluded. The
redemption of the shareholdings of HAD shall become effective upon full
payment of the Compensation Value plus interest to HAD.
2. With the exception of the first installment, the remaining installments
shall bear interest and shall be paid to HAD in accordance with (S) 9 of
the Articles of Association. The first installment shall bear interest
only as calculated in accordance with (S) 9 of the Articles of Association
until the date of payment and be due and payable within three banking days
after the signing of this Agreement by all of the Parties. *
3. *
-6-
*
-7-
*
-8-
*
-9-
*
4. The Parties agree and declare the Schiedsgutachterverfahren to be
terminated. They release the Schiedsgutachter from all further performance
obligations with the exception of the obligations to confidentiality. They
hereby authorize the Company to inform the Schiedsgutachter about this
Agreement. The remuneration to be granted to the Schiedsgutachter shall be
borne by the Shareholders in equal shares (each 50%).
5. Neither this Agreement nor the circumstances leading to its execution
shall be deemed to be an acknowledgment by any Party that, as of the
effective date hereof, any damage claim or defense was or is meritorious
or that any damage claim was or was not barred by any statute of
limitations or other time-related defense.
6. This Agreement shall not revive any statute of limitations that has
expired prior to the effective date hereof, * and shall have no effect
upon any defense, whether based on any period of limitations or doctrine
of laches, waiver, estoppel, or otherwise, that was available to any Party
prior to the effective date of this Agreement.
7. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one
and the same agreement and shall become effective and binding on all the
Parties when it has been executed by all of the Parties.
-10-
8. This Agreement is a complete and final statement of the agreements of the
Parties with respect to matters it deals with. The Parties agree that this
Agreement is entered into and executed without reliance on any statement
or representation of any kind or character that is not expressly set forth
in this Agreement and only the representation or promises expressly set
forth herein have been made to induce any Party to enter into this
Agreement. No prior or contemporaneous negotiations, promises, agreement,
covenants, or representations of any kind or nature whether made orally or
in writing, have been made by the Parties, or any of them, in negotiations
leading to this Agreement or relating to the subject matter hereof, which
are not expressly contained herein, or which have not become merged and
finally integrated into this Agreement.
9. This Agreement including this provision, may be modified, amended, or
supplemented only in a writing that makes specific reference to this
Agreement and is signed by representatives of all of the Parties hereto.
No conditions of any kind or nature exist to prevent the legal
effectiveness of this Agreement, which shall be in full force and effect
immediately upon the execution and delivery by the Parties hereto.
10. Each Party will, at the expense of the other Party, furnish, execute and
deliver such instruments, documents, certificates, notices or other
further assurances as the other Party may reasonably require as necessary
or appropriate to effect the purposes of this Agreement or to confirm the
rights created or arising hereunder.
11. IMCO Holding in its position as a shareholder of the Company, will not
take any resolution having an adverse effect on the feasibility and
performance of paragraph 3. of this Agreement.
12. Unless the context otherwise clearly indicates, words used in the singular
include the plural, the plural includes the singular, the masculine
includes the feminine and vice versa and `it" shall include "he" or "she"
or vice versa.
-11-
13. Except as otherwise noted in this Agreement, nothing in this Agreement is
intended or should be construed to create any rights or obligations on
behalf of any person not a Party hereto, except for each Party's legal
successors or assigns. *
14. This Agreement, and the rights and obligations of the Parties hereto,
shall be governed by and construed in accordance with the laws of the
Federal Republic of Germany without regard to the principles of conflict
of laws. The exclusive forum for any dispute or litigation of whatever
nature arising out of or in connection with this Agreement shall be the
Landgericht ▇▇▇▇▇▇▇▇▇▇.
▇▇. No failure on the part of any Party to this Agreement to exercise or
delay, on its part, exercising, any right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. Further, in order
for there to be a waiver of any term, provision or condition of this
Agreement, including this provision, the waiver must be evidenced by a
written document duly executed by the waiving Party in which case there
will only be a waiver to the extent therein set forth.
16. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision hereof shall not affect
the validity and enforceability of the other provisions hereof unless the
invalidity or unenforceability of the said provision would substantially
impair the benefits to any Party of the remaining provisions of this
Agreement. If any provision of this Agreement, or the application thereof
to any person or entity or any circumstances, is invalid or unenforceable
and the invalidity or unenforceability of the said provision does not
substantially impair the benefits to any Party of the remaining provisions
of this Agreement: (i) a suitable and equitable provision shall be
substituted therefore in order to carry out, so far as may be valid and
enforceable, the intent and purpose of
-12-
such invalid and unenforceable provision and (ii) the remainder of this
Agreement and the application of such provision to other persons, entities
or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof,
in any other jurisdiction.
Koln, 14 March 2003 Grevenbroich, _________2003
s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
IMCO Recycling Holding B.V.
s/ ▇▇▇▇▇▇ ▇▇▇▇
s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇
---------------------------------
VAW-IMCO ▇▇▇▇ und Recycling GmbH
s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
s/
---------------------------------
Hydro Aluminium Deutschland GmbH