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Exhibit 10.35
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of December 14, 1995 (this
"Agreement"), is made by and among Steel Dynamics Holdings, Inc., an Indiana
corporation (the "Company"), and Preussag ▇▇▇▇▇ ▇▇, a company incorporated under
the laws of the Federal Republic of Germany (the "Purchaser").
Except as otherwise indicated, capitalized terms used herein are defined
in Section 11 hereof. All referenced or attached Schedules and Exhibits are
deemed incorporated herein by reference.
The parties hereby agree as follows:
1. Purchase and Sale of Stock
1.1 First Sale and Issuance of Class A Common Stock: First Closing.
Subject to the terms of this Agreement and to the conditions set forth in
Section 2 hereof, the Company will sell and issue to Purchaser, and
Purchaser will purchase from the Company, for cash at the First Closing
(the "First Purchase"), Twenty Thousand Eight Hundred Thirty-three
(20,833) shares of the Company's authorized but unissued Class A Common
Stock, at a price of Two Hundred Forty U.S. Dollars (U.S. $240.00) per
share (the "Per Share Purchase Price"), for a total consideration of Five
Million U.S. Dollars (U.S. $5,000,000.00). For purposes of this Section
1.1 and elsewhere in the agreement, the Company's Class A Common Stock
shall be referred to as the "SDI Stock." This First Purchase of SDI Stock
will constitute a separate sale and purchase from those contemplated by
Sections 1.2 and 1.3.
1.2 Second Sale and Issuance of SDI Stock: Second Closing. Subject
to the terms of this Agreement and to the conditions set forth in Section
3 hereof, including Purchaser's determination described in Section 3.2,
the Company will sell and issue to Purchaser and Purchaser will purchase
from the Company, for cash at the Second Closing (the "Second Purchase"),
an additional Twenty Thousand Eight Hundred Thirty-three (20,833) shares
of the Company's authorized but unissued SDI Stock, at the same Per Share
Purchase Price, for a total additional consideration of Five Million U.S.
Dollars (U.S. $5,000,000.00). This Second Purchase of SDI Stock will
constitute a separate sale and purchase from those contemplated in
Sections 1.1 and 1.3.
1.3 Third Sale and Issuance of SDI Stock: Third Closing. Subject to
the terms of this Agreement and to the conditions set forth in Section 4
hereof, the Company, at its sole option and election exercisable by
written notice to Purchaser no later than ten (10) days prior to the Third
Closing, will sell and issue to Purchaser, and Purchaser will purchase
from the Company, for cash at the Third Closing (the "Third Purchase), not
less than an additional Sixty-Two Thousand Five Hundred (62,500) shares
nor more than One Hundred Sixty-Six Thousand Six Hundred Sixty-seven
(166,667) shares of the Company's authorized but unissued SDI Stock, in
the event that the Second Closing was consummated as contemplated
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by Section 1.2, or not less than an additional Eighty-three Thousand Three
Hundred Thirty-three (83,333) shares nor more than One Hundred
Eighty-seven Thousand Five Hundred (187,500) shares in the event that the
Second Closing was not consummated, at the same Per Share Purchase Price,
for a total additional consideration of not less than Fifteen Million U.S.
Dollars (U.S. $15,000,000.00) nor more than Forty Million U.S. Dollars
(U.S. $40,000,000.00) in the event that the Second Closing was
consummated, or not less than Twenty Million U.S. Dollars (U.S.
$20,000,000.00) nor more than Forty-five Million U.S. Dollars (U.S.
$45,000,000.00) in the event that the Second Closing was not consummated.
This Third Purchase of SDI Stock will constitute a separate sale and
purchase from those contemplated in Sections 1.1 and 1.2, and if and when
closed, and when aggregated with the purchase effected pursuant to Section
1.1 and with the purchase, if any, made pursuant to Section 1.2, will
entitle Purchaser to acquire or maintain the benefits described in
Sections 2.3, 2.4, 2.8, 2.15(a), 2.15(b), and 4.9.
1.4 Third Sale and Issuance of SDI Stock: Alternate Third Closing.
In the event that one or more of the conditions described in Sections 3 or
4 fail to materialize, such that Purchaser would not otherwise be required
to purchase additional stock under Sections 1.2 and/or 1.3, Purchaser,
pursuant to its rights under Sections 3.7 and/or 4.17, may elect to waive
such condition(s) and proceed, nonetheless, to effect the additional
purchase contemplated in this Section 1.4. Under such circumstances, and
notwithstanding anything to the contrary expressed or implied in Section
1.3 or elsewhere herein, Purchaser will purchase from the Company, and the
Company will sell to the Purchaser, for cash at the Alternate Third
Closing, if it occurs (the "Alternate Third Purchase") such number of
additional shares of the Company's authorized but unissued SDI Stock, at
the same Per Share Purchase Price, such that, when aggregated with the SDI
Stock sold to Purchaser pursuant to Section 1.1 and/or 1.2, will
constitute Purchaser the owner of a total of Twenty-five Million U.S.
Dollars (U.S. $25,000,000.00) of SDI Stock. If and when closed, in lieu of
the Third Purchase, and when aggregated with the purchase effected
pursuant to Section 1.1 and with the purchase, if any, made pursuant to
Section 1.2, such Alternate Third Purchase will entitle Purchaser to
acquire or maintain the benefits described in Sections 2.3, 2.4, 2.8, 4.5,
4.6, and 4.9.
1.5 Aggregate Shares to be Issued to Purchaser. In the event that
the Company elects to sell Purchaser only the minimum additional shares
required to be sold to Purchaser pursuant to Section 1.3, such that, in
addition thereto, Purchaser will have purchased the SDI Stock that was the
subject of the First Purchase (described in Section 1.1), and the Second
Purchase (described in Section 1.2), Purchaser would own, in the
aggregate, One Hundred Four Thousand One Hundred Sixty-seven (104,167)
shares of SDI Stock at and after the Third Closing. In the event that the
Company elects to sell Purchaser the maximum additional shares pursuant to
Section 1.3, Purchaser would own, in the aggregate, Two Hundred Eight
Thousand Three Hundred Thirty-three (208,333) shares of SDI Stock at and
after the Third Closing. In the event that the Company elects to sell more
than the minimum but less than the maximum additional shares pursuant to
Section 1.3, the aggregate number
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of shares of SDI Stock that the Company will issue and deliver to
Purchaser will be determined by dividing the actual U.S. dollar amount of
Purchaser's actual aggregate purchases pursuant to Sections 1.1, 1.2, and
1.3 by Two Hundred Forty U.S. Dollars (U.S. $240.00) per share. For
purposes of this Agreement, the number of shares of SDI Stock to be issued
to Purchaser will be adjusted, as necessary, to reflect any stock splits
or stock dividends.
1.6 Discretionary Additional Shares Issuable by the Company.
Notwithstanding anything to the contrary set forth in this Agreement, and
so long as the Company sells at least an aggregate of Twenty Five Million
U.S. Dollars (U.S. $25,000,000.00) of SDI Stock to Purchaser pursuant to
Sections 1.1, 1.2, and 1.3, the Company shall be entitled to sell SDI
Stock to other persons ("Other Persons"), including existing Stockholders,
Lenders or others who are qualified as Accredited Investors and whose
participation as additional purchasers will not render unavailable to the
Company any exemption from registration under the Securities Act of 1933
or comparable state Blue Sky Law otherwise available to the Company in
connection with this transaction, in an amount equal to the difference
between the amount of SDI Stock sold to Purchaser and at SDI's election
(the "Final Equity Amount"), either (a) Fifty Million U.S. Dollars (U.S.
$50,000,000.00), or (b) Sixty Million U.S. Dollars (U.S. $60,000,000.00).
In the event that the Company elects to do so, it shall notify the
Purchaser not less than ten (10) days prior to the Third Closing,
including in such notice, the aggregate amount of SDI Stock to be sold by
the Company, a list of the Other Persons, the number of shares intended to
be sold and issued to each such Other Person, and subject to the
provisions of Section 1.7, the per share purchase price with respect to
each such proposed sale.
1.7 Purchase Price: Other Persons. The purchase price per share of
the SDI Stock that may be sold, at the Company's election, to Other
Persons pursuant to the provisions of Section 1.6, shall be (a), up to and
not exceeding a maximum of Ten Million U.S. Dollars (U.S. $10,000,000.00)
thereof, not less than Two Hundred Thirty U.S. Dollars (U.S. $230.00), and
(b) for all other shares sold to Other Persons, not less than Two Hundred
Forty U.S. Dollars (U.S. $240.00). The Company agrees that, except as
permitted by this Section 1.7, at least during the period of ninety (90)
days subsequent to the Third Closing or Alternate Third Closing, it will
not issue or sell any SDI Stock to any person at less than Two Hundred
Forty U.S. Dollars (U.S. $240.00) per share.
2. Conditions of Purchaser's Obligation at the First Closing.
Purchaser's obligations at the First Closing to deliver to the Company the
$5,000,000.00 consideration for the SDI Stock to be purchased at such time shall
be subject, as of the First Closing, to the satisfaction of the following
conditions:
2.1 Stockholder Approvals and Consents. All requisite Stockholder
votes, approvals, and consents prescribed by the Stockholders Agreement,
including but not limited
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to the approval of not less than Seventy percent (70%) of the Company's
existing Stockholders, excluding Purchaser or any Other Person, and
including necessary waivers by existing Stockholders and Warrant Holders
of their limited preemptive rights thereunder, shall have been secured.
2.2 Lender Approvals. All requisite approvals, waivers, or consents,
if any, from the Company's senior and/or subordinated Lenders, permitting
the transactions contemplated by this Agreement shall have been secured.
2.3 Stockholders Agreement. Subject to Lender approval, with respect
to its effectiveness, the Company, the Purchaser, the ▇▇▇▇ Group, GECC,
the Whitney Group, Heavy Metal, Keylock, Mazelina, Low Cost, the Subdebt
Group, and the Management Group, as those persons are identified and
described in that certain Stockholders Agreement dated June 30, 1994 (the
"Stockholders Agreement") attached hereto as Exhibit 2.3A, shall have
entered into an agreement, in substantially the form and substance set
forth in Exhibit 2.3B attached hereto (the "Stockholders Joinder
Agreement"), with a delayed Effective Date, notwithstanding anything to
the contrary set forth therein, that is the later to occur of Lender
approval or of Purchaser's satisfaction of an aggregate of $25,000,000
minimum purchase amount of SDI Stock pursuant to Sections 1.1, 1.2, 1.3,
and 1.4, and the Stockholders Joinder Agreement shall not have been
rescinded or materially amended or modified. If Lender approval has not
been secured prior to the First Closing, this condition shall become a
condition of the Second and any Third or Alternate Third Closings.
In the interim between the First Closing and the date of the Third
Closing or Alternate Third Closing contemplated by Section 5, or until
such earlier or later time as it is determined that no Third Closing or
Alternate Third Closing will take place (the "Interim Period"), and from
and after any necessary Lender approval of the amendment of the
Stockholders Agreement, the provisions of Sections 2, 3, and 5-19,
inclusive, of the Stockholders Agreement shall be deemed effective as
between the parties hereto and thereto, and Purchaser, during such Interim
Period, shall be entitled to the benefits and shall be subject to the
burdens described in those sections, notwithstanding the delayed Effective
Date of the Stockholders Joinder Agreement. If a Third Closing or
Alternate Third Closing does not occur within the time set forth in
Section 5, then, unless extended by mutual agreement of the parties hereto
and thereto, the temporary rights conferred and burdens imposed hereby
during the Interim Period upon Purchaser shall automatically terminate.
2.4 Registration Agreement. The Company, the Purchaser, the ▇▇▇▇
Stockholders, GECC, Heavy Metal, the Keylock Stockholders, the Whitney
Stockholders, the Management Stockholders, and the Warrant Holders, as
those persons are identified and described in that certain Registration
Agreement dated June 30, 1994 (the "Registration Agreement") attached
hereto as Exhibit 2.4A, shall have entered into an agreement, in
substantially the form and substance set forth in Exhibit 2.4B attached
hereto (the "Registration Joinder Agreement"); provided, however, that the
provisions of Section 1 of
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the Registration Agreement ("Demand Registrations"), as amended by the
Registration Joinder Agreement, together with the proviso of Section 11(a)
thereof, and the provisions of Sections 3(b) and (c) of the Registration
Joinder Agreement, shall not be deemed effective, notwithstanding anything
to the contrary expressed herein or therein, unless and until Purchaser
has completed the purchase of an aggregate of at least Twenty-five Million
U.S. Dollars (U.S. $25,000,000.00) of SDI Stock pursuant to Sections 1.1,
1.2, 1.3, and 1.4.
2.5 [Section 2.5 is intentionally left blank.]
2.6 Representations and Warranties; Covenants. The representations
and warranties of the Company contained in Section 7 hereof shall continue
to be true and correct in all material respects at and as of the First
Closing, as though then made again, except to the extent of changes caused
by the transactions expressly contemplated herein.
2.7 The Company's Articles of Incorporation. The Company's current
Articles of Incorporation shall continue to be in full force and effect,
under the laws of Indiana, and shall not have been amended or modified in
any material respect.
2.8 The Company's By-Laws. The Company's By-Laws shall continue to
be in full force and effect as they presently exist, and shall not have
been amended or modified in any material respect, except that Article III,
Section 3.2 of the By-Laws shall have been amended to provide that the
authorized number of directors is ten (10) rather than nine (9); provided,
however, that the vacancy so created shall not be filled by a Purchaser
representative, in the manner contemplated by Section 1(a)(ii)(J) of the
Stockholders Agreement, as it is contemplated to be amended by Exhibit
2.3B hereof, until the Stockholders Joinder Agreement shall have become
effective.
2.9 Securities Law Compliance. The Company shall have made all
filings under all applicable federal and state securities laws necessary
to consummate the issuance and sale of the SDI Stock at the First Closing
and required to be made prior to or concurrently with such issuance and
sale.
2.10 No Litigation, Proceedings. There shall be no action, suit, or
proceeding threatened, instituted or pending before any court or
quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction (other than those set forth on the Litigation
Schedule attached hereto as Schedule 7.10) wherein an unfavorable
judgment, order, decree, stipulation, injunction, or charge would (a)
prevent or enjoin the consummation of any of the transactions contemplated
by this Agreement (including, without limitation, the Government Financing
Package, and the purchase of the SDI Stock by the Purchaser), (b) cause
any of the transactions contemplated by this Agreement to be rescinded
following consummation, or (c) affect adversely the right of the Company
to own, operate, or control its business or assets (and no such judgment,
order, decree, stipulation, injunction, or charge shall be in effect).
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2.11 Governmental Filings, Consents and Approvals. All federal,
state and local governmental filings, consents and approvals necessary for
the consummation of the First Closing (other than those required for the
physical construction, permitting and operation of the Project) shall have
been made or obtained.
2.12. Opinion of the Company's Counsel. The Purchaser shall have
received from counsel for the Company an opinion substantially in the form
set forth on Exhibit 2.12 attached hereto, which shall be addressed to the
Purchaser and dated the date of the First Closing.
2.13 Closing Documents. The Company shall have delivered to the
Purchaser all of the following documents:
(a) an Officer's Certificate, dated the date of the First
Closing, stating that the conditions specified in Sections 2.1
through 2.11, inclusive (except to the extent of matters required to
be satisfactory to the Purchaser), have been fully satisfied;
(b) certified copies of (i) the resolutions duly adopted by
the board of directors of the Company, authorizing the execution,
delivery and performance of this Agreement, the Registration Joinder
Agreement, and the Stockholders Joinder Agreement, and each of the
other agreements contemplated hereby at or prior to the First
Closing, and the issuance and sale of the SDI Stock contemplated by
Section 1.1;
(c) certified copies of the Articles of Incorporation and the
By-Laws, each as in effect at the First Closing;
(d) certified copy of the Government Financing Package
commitment, as issued or in effect at the First Closing;
(e) a certificate as to the incumbency of the officers of the
Company executing this Agreement and the other agreements
contemplated hereby on behalf of the Company;
(f) copies of all third party and governmental consents,
approvals, waivers, and filings required in connection with the
consummation of the transactions hereunder to the extent required to
be obtained or filed prior to the First Closing (other than those
required in connection with the physical construction, permitting
and operation of the Project); and
(g) such other documents relating to the transactions
contemplated by this Agreement as Purchaser may reasonably request.
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2.14 Proceedings. All corporate and other proceedings taken or
required to be taken by the Company in connection with the transactions
contemplated hereby to be consummated at or prior to the First Closing,
and all documents incident thereto, shall be reasonably satisfactory in
form and substance to the Purchaser.
2.15 Additional Agreements. Subject to the Company's right to
terminate the following agreements and Purchaser's prospective rights
thereunder in the event that Purchaser does not purchase an aggregate of
$25,000,000 of SDI Stock pursuant to Sections 1.1, 1.2, 1.3, and 1.4:
(a) Reciprocal Patent and Technical Information Transfer and
License Agreement. The Company shall have entered into the
Reciprocal Patent and Technical Information Transfer and License
Agreement (the "Technology Agreement"), in substantially the form
and substance set forth in Exhibit 2.15(a) attached hereto, and the
Technology Agreement shall be in full force and effect. In the
event, however, that a Third Closing or Alternate Third Closing does
not occur within the time set forth in Section 5, then, unless
extended by mutual agreement of the parties hereto, the rights
conferred and burdens imposed upon Purchaser and the Company, at the
unilateral election of the Company, shall terminate; provided,
however, that both Purchaser and the Company shall be entitled to
retain and use in their own steel production operations in Europe,
and in the United States, respectively, the proprietary information
acquired during any period of effectiveness of the Technology
Agreement.
(b) Purchasing, Domestic Sales and Export Distribution
Agreement. The Company shall have entered into a Purchasing,
Domestic Sales and Export Distribution Agreement (the "Commercial
Agreement"), in substantially the form and substance set forth in
Exhibit 2.15(b) attached hereto, and the Commercial Agreement shall
be in full force and effect. In the event, however, that a Third
Closing or Alternate Closing does not occur within the time set
forth in Section 5, then, unless extended by mutual agreement of the
parties hereto, the rights conferred and burdens imposed upon
Purchaser and the Company, at the unilateral election of the
Company, shall terminate, subject only to the completion of orders
that were placed prior to termination.
2.16 State, County, and Municipal Financing. The Company and certain
State of Indiana, DeKalb County and/or City of ▇▇▇▇▇▇ governmental
authorities ("Public Authorities") shall have agreed upon the principal
terms and conditions pursuant to which such Public Authorities will
provide certain state, county, and municipal grants and loans to the
Company, in the aggregate amount of not less than $3,000,000.00,
(collectively, the "Government Financing Package") and a commitment
therefor shall have been issued and delivered to the Company, in form and
substance reasonably satisfactory to Purchaser; and such Government
Financing Package shall be in full force and effect and shall not have
been rescinded or materially amended or modified.
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2.17 Waiver. Any condition specified in this Section 2 may be waived
if consented to in writing by Purchaser.
3. Conditions of Purchaser's Obligations at the Second Closing.
In addition to the conditions described in Section 2.1 through 2.11,
relative to Purchaser's obligations at the First Closing, all of which shall be
deemed continuing conditions and updated to the time and for purposes of the
Second Closing, Purchaser's obligations at the Second Closing to deliver to the
Company the $5,000,000.00 consideration for the SDI Stock to be purchased at
such time shall be subject, as of the Second Closing, to the satisfaction of the
following additional conditions:
3.1 Debt Financing Commitment. One or more lenders, or a syndicate
of lenders (the "Lenders") shall have issued a firm commitment, (the
"Debt-Financing Commitment"), on or before January 15, 1996, in form and
substance reasonably satisfactory to Purchaser, for all necessary debt
financing, including senior and subordinated components thereof, in the
amount of One Hundred Forty Million U.S. Dollars (U.S. $140,000,000.00),
without recourse, however, to Purchaser or to any other Company
Stockholder.
3.2 Purchaser's Determination With Respect to Debt Financing
Commitment. Purchaser shall have determined that the Debt Financing
Commitment issued by the Lenders as contemplated by Section 3.1, is
without material conditions to closing which, in the judgment of
Purchaser, cannot reasonably be met or satisfied in connection therewith.
3.3 Lender Approvals. All remaining Lender approvals, waivers, or
consents not previously obtained shall have been received, including (but
not limited to) Lender approval of the Stockholders Joinder Agreement and
Amendment No. 2 to Stockholders Agreement described in Section 2.3.
3.4 Proceedings. All corporate and other proceedings taken or
required to be taken by the Company in connection with the transactions
contemplated hereby to be consummated at or prior to the Second Closing,
and all documents incident thereto, shall be reasonably satisfactory in
form and substance to the Purchaser.
3.5 Opinion of the Company's Counsel. The Purchaser shall have
received from counsel for the Company an opinion substantially in the form
set forth on Exhibit 3.4 attached hereto, which shall be addressed to the
Purchaser and dated the date of the Second Closing.
3.6 Closing Documents. The Company shall have delivered to the
Purchaser all of the following documents:
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(a) an Officer's Certificate, dated the date of the Second
Closing, stating that the conditions specified in Sections 2.1
through 2.11, inclusive, and Sections 3.1 through 3.3, inclusive
(except to the extent of matters required to be satisfactory to the
Purchaser), have been fully satisfied and that the representations
and warranties set forth in Section 7 are true and correct as of the
date of the Second Closing;
(b) certified copies of the Articles of Incorporation and the
By-Laws, each as in effect at the Second Closing;
(c) certificate as to the incumbency of the officers of the
Company executing this Agreement and the other agreements
contemplated hereby on behalf of the Company;
(d) copies of all third party and governmental consents,
approvals and filings required in connection with the consummation
of the transactions hereunder to the extent required to be obtained
or filed prior to the Second Closing (other than those required in
connection with the physical construction, permitting and operation
of the Project); and
(e) such other documents relating to the transactions
contemplated by this Agreement as Purchaser or their special counsel
may reasonably request.
3.6 Representations and Warranties; Covenants. The representations
and warranties of the Company contained in Section 7 hereof shall continue
to be true and correct in all material respects at and as of the Second
Closing, as though then made again, except to the extent of changes caused
by the transactions expressly contemplated herein.
3.7 Waiver. Any conditions specified in this Section 3 may be waived
if consented to in writing by Purchaser.
4. Conditions of Purchaser's Obligations at the Third Closing.
In addition to the conditions described in Sections 2.1 through 2.9,
relative to Purchaser's Obligations at the First Closing, all of which shall be
deemed continuing conditions and updated to the time and for purposes of the
Third Closing, Purchaser's obligations at the Third Closing to deliver to the
Company (a) consideration of not less than $15,000,000.00 nor more than
$40,000,000.00 (in the event that Purchaser has already purchased the SDI Stock
contemplated by Section 1.2), or (b) consideration of not less than Twenty
Million U.S. Dollars (U.S. $20,000,000.00) nor more than Forty-five Million U.S.
Dollars (U.S. $45,000,000.00) (in the event that Purchaser did not purchase the
SDI Stock contemplated by Section 1.2), required to be delivered pursuant to
Section 1.3 for the SDI Stock to be purchased at such time, shall be subject, as
of the Third Closing, to the satisfaction of the following additional
conditions:
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4.1 Status of Phase II Project. The Company's Board of Directors
shall have reconfirmed that the planning, construction and operation of
the hot dip galvanizing and cold rolling plant that constitutes "Phase II"
of the Company's Development Plans (the "Phase II Project") will proceed
forward, subject only to the availability of funds.
4.2 Debt Financing Commitment. The Debt Financing Commitment issued
by the Lenders, referred to at Section 3.1, shall continue to be in full
force and effect and shall not have been withdrawn, modified, or amended
in any material respect.
4.3 Closing of Debt Financing. The Lenders in connection with the
Debt Financing Commitment shall have entered into definitive agreements
and related documentation (the "Bank Agreement") with the Company,
providing for debt financing to the Company to finance the Phase II
Project and the Company's working capital needs in connection therewith,
in form and substance reasonably satisfactory to the Purchaser.
4.4 Construction and Equipment Contracts. The Company shall have
entered into each of the preliminary contracts listed on Schedule 4.4
attached hereto (the "Construction Contracts") in connection with the
construction of the Phase II Project and the acquisition of equipment to
be used therein, each in form and substance reasonably satisfactory to the
Purchaser, and each of the Construction Contracts shall be in full force
and effect as of the Third Closing.
4.5 Technology Agreement. The Technology Agreement shall continue to
be in full force and effect.
4.6 Commercial Agreement. The Commercial Agreement shall continue to
be in full force and effect.
4.7 Other Equity Purchase Commitments; Closing. In the event that
the Company has determined to sell less than the aggregate of
$50,000,000.00 of SDI Stock to Purchaser within the limits described in
Section 1.3, and has so notified Purchaser in the manner contemplated by
Section 1.6, then, regardless of the Final Equity Amount selected by the
Company, the Company shall have obtained binding commitments from persons
other than Purchaser ("Other Purchasers"), who may but need not be
existing Stockholders and/or Lenders, for the full amount of the
difference between the Final Equity Amount and the aggregate amount of SDI
Stock to be sold to Purchaser pursuant to Section 1.1., 1.2, and either
1.3 or 1.4; and the Company shall have entered into definitive agreements
and related documentation with such Other Purchasers covering the
aggregate amount thereof.
4.8 Effectiveness of Stockholders Joinder Agreement and Registration
Joinder Agreement; Amendment of By-Laws. All conditions to the
effectiveness of the Stockholders Joinder Agreement, described in Section
2.3, and the Registration Joinder Agreement, described in Section 2.4,
shall have been satisfied; the Company shall have delivered to
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Purchaser an Officer's Certificate, dated as of the Third Closing, stating
that all such conditions to the effectiveness of the Stockholders Joinder
Agreement and the Registration Joinder Agreement have been satisfied, and
that Purchaser shall thenceforth be entitled to all of the rights and
benefits, and be subject to all of the burdens and obligations, set forth
in the Stockholders Agreement (including, but not limited to, the
amendment to Sections 1(a)(i) thereof, providing for a board of directors
of ten (10) persons, and Section 1(a)(ii) thereof adding a new
subparagraph (J) thereto providing for the election of one (1) Purchaser
representative to the Company's Board of Directors) and set forth in the
Registration Agreement; and the Company's By-Laws shall have been amended
to increase the number of authorized members of the Board of Directors to
ten (10), from the present number of nine (9).
4.9 Steel - Related Business Focus. Effective, if at all, at and
after the Third Closing or the Alternate Third Closing, as the case may
be, and until the Company effects an initial public offering (or its
shares are otherwise required to be registered under the Securities
Exchange Act of 1934, as amended), the Company agrees that it will
concentrate its efforts upon steel-related businesses, broadly defined to
include (but not be limited to) vertical integration, processing and
distribution, and that Purchaser, absent its agreement to the contrary,
will have the right to prohibit the Company's incursion into any
prospective non-related businesses of a material nature, unless having a
strategic fit with the Company's steel-related business.
4.10 Commencement of Actual Construction. Actual construction of the
Phase II Project shall have commenced. For purposes of this Section 4.10,
"actual construction" shall include (but shall not be limited to)
engineering work, contracting for equipment and machinery, infrastructure
work, and site preparation work, as well as actual plant building
activities.
4.11 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Clearance. All necessary notifications and
filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, by
the Company and by Purchaser, shall have been made, all necessary
submissions shall have been determined complete, and an actual clearance
shall have been issued or a sufficient period shall have elapsed since the
filing to signify that no action will be taken to block the SDI Stock
purchases, contemplated hereunder.
4.12 No Litigation, Proceedings. There shall be no action, suit, or
proceeding threatened, instituted or pending before any court or
quasi-judicial or administrative agency of any federal, state, local or
foreign jurisdiction, wherein an unfavorable judgment, order, decree,
stipulation, injunction, or charge would prevent or enjoin the
consummation of the purchase of the SDI Stock by Purchaser at or following
the Third Closing, or the consummation of the debt financing contemplated
by the Bank Agreement, or the subordinated debt financing contemplated by
the Subordinated Loan Agreement.
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4.13 Opinion of the Company's Counsel. The Purchaser shall have
received from counsel for the company an opinion substantially in the form
set forth on Exhibit 4.13 attached hereto, which shall be addressed to the
Purchaser and dated the date of the Third Closing.
4.14 Closing Documents. In addition to the Closing Documents
described in Section 2.13(a) - (g), all of which, including an officer
certificate stating that the Company's representations and warranties set
forth in Section 7 are true and correct as of the date of the Third
Closing, shall be updated to the time and date of the Third Closing, the
Company shall have delivered to the Purchaser all of the following
additional documents:
(a) Certified copies of resolutions duly adopted by the
Company's Board of Directors authorizing the execution, delivery and
performance of the Bank Agreement, the Subordinated Loan Agreement,
and the Construction Contracts, and the issuance and sale of the SDI
Stock at and subsequent to the Third Closing;
(b) Certified copies of the Bank Agreement, the Subordinated
Loan Agreement, and the Construction Contracts, as in effect at the
Third Closing; and
(c) Such other documents relating to the transactions
contemplated by the Third Closing as Purchaser may reasonably
request.
4.15 Proceedings. All corporate and other proceedings taken or
required to be taken by the Company in connection with the transactions
contemplated hereby to be consummated at or prior to the Third Closing,
and all documents incident thereto, shall be reasonably satisfactory in
form and substance to the Purchaser.
4.16 Representations and Warranties; Covenants. The representations
and warranties of the Company contained in Section 7 hereof shall continue
to be true and correct in all material respects at and as of the Third
Closing, as though then made again, except to the extent of changes caused
by the transactions expressly contemplated herein.
4.17 Lender Approvals. All remaining Lender approvals, waivers, or
consents not previously obtained shall have been received, including (but
not limited to) Lender approval of the Stockholders Joinder Agreement and
Amendment No. 2 to Stockholders Agreement described in Section 2.3.
4.18 Waiver. Any condition specified in this Section 4 may be waived
if consented to in writing by Purchaser.
5. The Closings and Payments. The First Closing, contemplated by Section
1.1, will occur, on not less than five (5) days notice, on or before December
15, 1995. The Second Closing contemplated by Section 1.2, will occur, if at all,
on not less than five (5) days notice, on or before
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January 15, 1996, and the Third Closing, contemplated by Section 1.3, or a
closing in lieu of the Third Closing (the "Alternate Third Closing") will occur,
on not less than five (5) days notice, on or before February 29, 1996. The First
Closing, the Second Closing, The Third Closing, and the Alternate Third Closing,
if it occurs, will take place at 10:00 A.M., E.S.T. on each date, at the offices
of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, or at such
other place or time or on such other date as may be mutually agreeable to the
Company and the Purchaser.
6. Restrictions on Transfers.
6.1 Restrictions. Purchaser agrees that Restricted Securities are
only transferable pursuant to (a) public offerings registered under the
Securities Act, (b) Rule 144 or Rule 144A of the Securities and Exchange
Commission (or any similar rules then in force) if such rules are
available, (c) Regulation S of the Securities and Exchange Commission (or
any similar rules then in force), and (d) subject to the conditions
specified in Section 6.2 below, any other legally available means of
transfer pursuant to the Securities Act.
6.2 Procedure for Transfer. Subject to such other restrictions on
transfer set forth in the Stockholders Agreement, in connection with the
transfer of any Restricted Securities (other than a transfer referred to
in clauses (a), (b), or (c) of Section 6.1 above), Purchaser will deliver
written notice to the Company describing in reasonable detail the transfer
or proposed transfer, together with an opinion of counsel, which (to the
Company's reasonable satisfaction) is knowledgeable in securities law
matters, to the effect that such transfer of Restricted Securities may be
effected without registration of such Restricted Securities under the
Securities Act. In addition, if Purchaser delivers to the Company an
opinion of such counsel reasonably satisfactory to the Company that no
subsequent transfer of such Restricted Securities by Purchaser will
require registration under the Securities Act, the Company will promptly
upon such contemplated transfer deliver new certificates for such
Restricted Securities which do not bear the Securities Act Legend set
forth in Section 6(b) of the Stockholders Agreement. If the Company is not
required to deliver new certificates for such Restricted Securities not
bearing such legend, the Purchaser will not transfer the same until the
prospective transferee has confirmed to the Company in writing its
agreement to be bound by the conditions contained in this Section 6 and
Section 8.4.
6.3 Transferees. Upon request of Purchaser, the Company shall
promptly supply to Purchaser or its prospective transferees all
information required to be delivered in connection with a transfer
pursuant to Rule 144A of the Securities and Exchange Commission.
6.4 Legend Removal. If any Restricted Securities become eligible for
sale pursuant to Rule 144(k), the Company will promptly upon the request
of Purchaser deliver new certificates for such Restricted Securities which
do not bear the Securities Act Legend set forth in Section 5(b) of the
Stockholders Agreement.
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7. Representations, Warranties, and Covenants of the Company.
The Company hereby represents and warrants to the Purchaser that, as of
the First Closing, and, except as otherwise stated herein, continuing to and as
of the Second Closing and Third Closing as well:
7.1 Organization, etc. Each of the Company, Steel Dynamics Sales
Corp. and Steel Dynamics, Inc. (the "Companies") is a corporation duly
organized and validly existing under the laws of the State of Indiana and,
at each of the First, Second, and Third Closing (collectively, the
"Closings"), will be qualified to do business as a foreign corporation in
each jurisdiction in which the failure to so qualify would reasonably be
expected to have a material adverse effect on the financial condition,
operating results, assets, operations, business or prospects of the
Companies, as applicable. At the Closings, each of the Companies will
possess all requisite corporate power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its respective businesses as now conducted and
presently proposed to be conducted (other than licenses, permits and
authorizations required for the physical construction, permitting and
operation of the Project) and to carry out the transactions contemplated
by this Agreement.
7.2 Capital Stock and Related Matters.
(a) As of the First Closing, but prior to the Sale to
Purchaser contemplated by Section 1.1, (i) the authorized capital
stock of the Company will consist of 10,000,000 shares of SDI Stock,
par value $0.01 per share, and 500,000 shares of Class B Common, par
value $0.01 per share, (ii) the Company will have issued, and there
will be outstanding, 1,000,000 shares of SDI Stock and no shares of
its Class B Common, (iii) purchasers of the Company's senior
subordinated promissory notes will hold warrants for the purchase of
up to Fifty-eight Thousand Five Hundred Eleven (58,511) shares of
SDI's Stock, (iv) APT Holdings Corporation, an affiliate of Mellon
Bank, N.A., will hold a warrant for the purchase of Five Thousand
Three Hundred Thirty-three (5,333) shares of SDI's Class B Common
Stock, convertible share for share into SDI Stock, and (v) a total
of up to Twenty-one Thousand Eight Hundred (21,800) shares of SDI's
Stock will be purchasable upon exercise of stock options granted to
the Company's employees pursuant to its 1994 Incentive Stock Option
Plan, aggregating, on a fully diluted basis (without regard to any
purchase of SDI Stock by Purchaser or by any other Stockholders or
Warrant Holders pursuant to the exercise of any of their limited
preemptive rights under the existing Stockholders Agreement), One
Million Eighty-five Thousand Six Hundred Forty-four (1,085,644)
shares of SDI Stock.
(b) As of the Second Closing, unless Purchaser has determined
not to proceed with the Second Closing, in accordance with Section
3.2, prior to the purchase by Purchaser of SDI Stock at the Second
Closing, but including the 20,833
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shares of SDI Stock that Purchaser will have purchased in connection
with the First Closing, there will be outstanding 1,020,833 shares
of SDI Stock, and the aggregate of all SDI Stock, on a fully diluted
basis, as aforesaid, will total One Million One Hundred Six Thousand
Four Hundred Sixty-three (1,106,463) shares of SDI Stock, all other
share information remaining unchanged from that set forth in Section
7.2(a).
(c) As of the Third Closing, including the 20,833 shares of
SDI Stock that Purchaser will purchase in connection with the First
Closing and the Twenty Thousand Eight Hundred Thirty-three (20,833)
shares of SDI Stock that Purchaser will have purchased in connection
with the Second Closing, unless the Second Closing shall not have
taken place, there will be outstanding 1,041,666 shares of SDI
Stock, and the aggregate of all SDI Stock, on a fully diluted basis,
as aforesaid, will total One Million One Hundred Twenty-seven
Thousand Two Hundred Ninety-six (1,127,296) shares of SDI Stock, all
other share information remaining unchanged from that set forth in
Section 7.2(a).
(d) As of the Alternate Third Closing, if one occurs, and
including all of the shares of SDI Stock sold to Purchaser pursuant
to Sections 1.1 and 1.2, and under the Option Agreement described in
Section 2.4, there will be outstanding One Million One Hundred four
Thousand One Hundred Sixty-seven (1,104,167) shares of SDI Stock at
and after the Closing, and the aggregate of all SDI Stock, on a
fully diluted basis, as aforesaid, will total One Million One
Hundred Eighty-nine Thousand Seven Hundred Ninety-seven (1,189,797)
shares of SDI Stock, all other share information remaining unchanged
from that set forth in Section 7.2(a).
(e) As of the Closings, (i) the authorized capital stock of
Steel Dynamics Sales Corp. will consist of 10,000 shares of Class A
Common Stock, par value $.01 per share, and (ii) Sales Dynamics
Sales Corp. will have issued and there will be outstanding 100 such
shares, owned entirely by the Company.
(f) As of the Closings, (i) the authorized capital stock of
Steel Dynamics, Inc. will consist of 10,000 shares of Class A Common
Stock, par value $.01 per share, and (ii) Steel Dynamics, Inc. will
have issued and there will be outstanding 100 such shares, all of
which will be owned by Steel Dynamics Sales Corp.
(g) Except as set forth on the "Capitalization Schedule"
attached hereto as Schedule 7.2(g), as of the Closings, none of the
Companies will have outstanding any stock or securities convertible
or exchangeable for any shares of its capital stock, or have
outstanding any rights or options to subscribe for or to purchase
any capital stock or any stock securities convertible into or
exchangeable for any capital stock. The Capitalization Schedule
accurately sets forth the following information as of each of the
Closings with respect to all outstanding options and rights to
acquire the capital stock of the Companies: the holder, the number
of shares covered, the
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exercise price and the expiration date. As of each of the Closings,
except as contemplated by this Agreement, none of the Companies will
be subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any shares of its capital stock or
any warrants, options or other rights to acquire its capital stock
or to make any payment in respect of any of the foregoing, except
pursuant hereto, pursuant to the Stockholders Agreement or as set
forth on the Capitalization Schedule or in the Articles of
Incorporation.
(h) As of the Closings, (i) the outstanding SDI Stock of the
Company will be held exclusively by the persons and in the amounts
set forth on the Capitalization Schedule, the outstanding common
stock of Sales Dynamics Sales Corp. will be held exclusively by the
Company and the outstanding common stock of Steel Dynamics, Inc.
will be held exclusively by Steel Dynamics Sales Corp., and (ii)
other than the matters disclosed on the Capitalization Schedule,
none of the Companies will have any commitment to issue shares of
its capital stock, or any rights or options to subscribe for or
purchase any capital stock. As of each of the Closings, all of the
outstanding shares of the Companies capital stock will have been
duly authorized, validly issued, fully paid, and nonassessable.
(i) There are no statutory and no unwaived contractual
shareholder preemptive rights or rights of refusal with respect to
the issuance of the SDI Stock to Purchaser hereunder, except as
described in Schedule 7.2 (i) attached hereto. The Company has not
violated any applicable federal or state securities laws in
connection with the offer, sale or issuance of any of its capital
stock, and the offer, sale and issuance of the SDI Stock hereunder
do not require registration under the Securities Act or any
applicable state securities laws. To the best of the Company's
knowledge, there are no agreements between the Company's
shareholders with respect to the voting or transfer of the Company's
capital stock or with respect to any other aspect of the Company's
affairs, except as set forth in the Stockholders Agreement and the
Registration Agreement, as amended by each of the joinder
agreements.
7.3 Subsidiaries; Investments. The Company does not have any
Subsidiaries other than Steel Dynamics Sales Corp. and Steel Dynamics,
Inc., and the Company does not own or hold the right to acquire any shares
of stock or any other security or interest in any other Person.
7.4 Authorization; No Breach. The execution, delivery and
performance of this Agreement, the Option Agreement, the Registration
Joinder Agreement, the Stockholders Joinder Agreement, the Commercial
Agreement, the Technology Agreement, and all other agreements and
transactions contemplated hereby and thereby to which the Company is a
party, have been duly authorized by the Company. This Agreement, the
Registration Joinder Agreement, the Stockholders Joinder Agreement, the
Option Agreement, the Commercial
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Agreement, the Technology Agreement, and all of the other agreements
contemplated hereby and thereby to which the Company is a party each
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as any of them
may be affected by laws relating generally to the enforcement of
creditors' rights and general principles of equity. The execution and
delivery by the Company of this Agreement, the Registration Joinder
Agreement, the Stockholders Joinder Agreement, and all other agreements
and instruments contemplated hereby to be executed by the Company, the
offering, sale and issuance of the SDI Stock, and the fulfillment of and
compliance with the respective terms hereby and thereof by the Company, do
not and will not (a) conflict with or result in a breach of the terms,
conditions or provisions of (b) constitute a default under, (c) result in
the creation of any Lien upon the Company's capital stock or assets
pursuant to, (d) give any third party the right to accelerate any
obligation under, (e) result in a violation of, or other action by or
notice to any court or administrative or governmental body (other than in
connection with certain state and federal securities laws) pursuant to,
the Articles of Incorporation or By-Laws, or any law, statute, rule,
regulation, instrument, order, judgment or decree to which the Company is
subject or any agreement or instrument to which the Company is a party.
7.5 Conduct of Business; Liabilities. Attached hereto as Exhibit 7.5
is an unaudited consolidated balance sheet of the Companies as at
September 30, 1995 (the "Balance Sheet). The Balance Sheet is accurate and
complete in all material respects, is consistent with the books and
records of the Companies, (which, in turn, are accurate and complete in
all material respects) and has been prepared in accordance with generally
accepted accounting principles ("GAAP"), consistently applied. Except as
set forth on the "Liabilities Schedule attached hereto as Schedule 7.5,
none of the Companies have any obligations or liabilities (whether
accrued, absolute, contingent, unliquidated or otherwise, whether or not
known to the Companies, whether due or to become due and regardless of
when asserted) arising out of transactions entered into at or prior to any
of the Closings, or any action or inaction at or prior to any of the
Closings other than: (a) liabilities set forth on the Balance Sheet
(including any notes thereto), (b) liabilities and obligations which have
arisen after the date of the Balance Sheet in the ordinary course of
business (none of which is a liability resulting from breach of contract,
breach of warranty, tort, infringement, claim or lawsuit), (c) other
liabilities and obligations expressly disclosed in the other Schedules to
this Agreement and (d) matters that, individually or in the aggregate,
would not be reasonably likely to have a material adverse effect on the
condition of the Companies taken as a whole.
7.6 No Material Adverse Change. Since September 30, 1995, there has
been no material adverse change in the business or prospects of the
Companies.
7.7 Absence of Certain Developments. Except as expressly
contemplated or disclosed by this Agreement; by the Stock Purchase
Agreement of June 30, 1994, and the Exhibits and Schedules thereto, by the
Credit Agreement of June 30, 1994, and the Exhibits
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and Schedules thereto; by the Subordinated Loan and Warrant Purchase
Agreement of June 30, 1994, and the Exhibits and Schedules thereto; by the
Company's 1994 Incentive Stock Option Plan; by the Memorandum of
Understanding, dated June 10, 1994, by and among the State of Indiana, the
County of DeKalb, Indiana, the DeKalb County Redevelopment Authority, the
DeKalb County Redevelopment Commission, the City of ▇▇▇▇▇▇, Indiana, and
Steel Dynamics, Inc., and various agreements contemplated thereby; by the
Indiana Michigan Power Substation Facilities Agreement dated June 1, 1994;
by the Seed Money Commitment Agreement, dated as of January 5, 1995, and
related agreements in connection therewith, by and between SDHI and other
seed money investors or loan providers and Qualitech Steel Corporation, a
Delaware corporation; by SDHI's incorporation of Iron Dynamics, Inc., an
Indiana corporation, and certain preliminary work done and costs
associated with the capitalization and financing of this scrap substitute
manufacturing facility; by the Facilities Agreement by and among Steel
Dynamics, Inc., Consolidated Rail Corporation, Norfolk and Western Railway
Company, and CSX Transportation, Inc.; by anything reflected in the
Balance Sheet or notes thereto, or by anything set forth on the
"Developments Schedule," attached hereto as Schedule 7.7, since their
respective dates of formation, none of the companies have:
(a) issued any notes, bonds or other debt securities or any
capital stock or other equity securities or any securities
convertible, exchangeable or exercisable into any capital stock or
other equity securities;
(b) borrowed any amount or incurred or become subject to any
material liabilities;
(c) mortgaged or pledged any of its properties or assets or
subjected them to any material Lien, except Liens for current
property taxes not yet due and payable and Liens under the Bank
Agreement;
(d) sold, assigned or transferred any of its tangible assets;
(e) sold, assigned or transferred any patents or patent
applications, trademarks, service marks, trade names, corporate
names, copyrights or copyright registrations, trade secrets or other
intangible assets, or disclosed any material proprietary
confidential information to any Person;
(f) made any loans or advances to, guarantees for the benefit
of, or any investments in, any Person; or
(g) made any Investment in or taken steps to incorporate any
Subsidiary.
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7.8 Contracts and Commitments.
(a) Except as expressly contemplated by this Agreement, by the
instruments disclosed in Section 7.7, or as set forth on the Phase
II Project contracts schedule (the "Contracts Schedule") attached
hereto as Schedule 7.8(A) -1, or the "Employee Benefits Schedule"
attached hereto as Schedule 7.8(A)-2, none of the Companies are a
party to or bound by any written or oral:
(i) pension, profit sharing, stock option, employee
stock purchase or other plan or arrangement providing for
deferred or other compensation to employees or any other
employee benefit plan or arrangement, or any collective
bargaining agreement or any other contract with any labor
union, or severance agreements, programs, policies or
arrangement;
(ii) contract for the employment of any officer,
individual employee or other Person on a full-time ,
part-time, consulting or the basis providing annual
compensation in excess of $75,000 or contract relating to
loans to officers, directors of Affiliates;
(iii) contract under which the Companies have advanced
or loaned any other Person amounts in the aggregate exceeding
$25,000;
(iv) agreement or indenture relating to borrowed money
or other indebtedness or the mortgaging, pledging or otherwise
placing a Lien on any material asset or material group of
assets of the Companies;
(v) guarantee of any obligation in excess of $25,000;
(vi) lease or agreement under which any of the Companies
is lessee of or holds or operates any property, real or
personal, owned by any other party, except for any lease of
real or personal property under which the aggregate annual
rental payments do not exceed $50,000;
(vii) lease or agreement under which any of the
Companies is lessor of or permits any third party to hold or
operate any property, real or personal, owned or controlled by
the Companies;
(viii)contract or group of related contracts with the
same party or group of affiliated parties the performance of
which involves consideration in excess of $100,000;
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(ix) assignment, license, indemnification or agreement
with respect to any intangible property (including, without
limitation, any Intellectual Property);
(x) agreement under which it has granted any Person any
registration rights (including, without limitation, demand and
piggyback registration rights) with respect to any securities
of the Companies;
(xi) sales or distribution agreement;
(xii) agreement with a term of more than six months
which is not terminable by the Companies upon less than thirty
(30) days notice without material penalty;
(xiii)contract or agreement prohibiting it from freely
engaging in any business or competing anywhere in the world;
or
(xiv) any other agreement which is material to its
operations and business prospects or involves a consideration
in excess of $200,000 annually.
(b) All of the contracts, agreements and instruments set forth
on the Contracts Schedule are valid, binding and enforceable against
the Companies, as the case may be, in accordance with their
respective terms, except as any of them may be affected by laws
relating generally to the enforcement of creditors' rights and
general principles of equity. The Companies have performed all
material obligations required to be performed by them heretofore
under the contracts, agreements and instruments listed on the
Contracts Schedule to which each is a party and are not in material
default under or in material breach of nor in receipt of any claim
of material default or material breach under any contract, agreement
or instrument listed on the Contracts Schedule; no event has
occurred which with the passage of time or the giving of notice or
both would result in a material default, breach or event of
noncompliance by the Companies, as the case may be, under any
contract, agreement or instrument listed on the Contracts Schedule;
none of the Companies, has nay present expectation or intention of
not performing all such obligations; none of the Companies has any
knowledge of any breach or anticipated material breach by the other
parties to any contract, agreement, instrument or commitment to
which it is a party listed on the Contracts Schedule.
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7.9 Intellectual Property Rights.
(a) The "Intellectual Property Schedule" attached hereto as Schedule
7.9, contains a complete and accurate list of all (i) all patented or
registered Intellectual property Rights owned or proposed to be used by
the Companies, (ii) pending patent applications and applications for
registrations of other Intellectual Property Rights filed by the
Companies, (iii) unregistered trade names and corporate names owned or
proposed to be used by the Companies, and (iv) unregistered trademarks,
service marks, copyrights and computer software owned or proposed to be
used by the Companies. The Intellectual Property Schedule also contains a
complete and accurate list of all licenses and other rights granted by the
Companies to any third party with respect to any Intellectual Property
Rights and all licenses and other rights granted by any third party to the
Companies with respect to any Intellectual property Rights, in each case
identifying the subject Intellectual Property Rights. Except as set forth
on the Intellectual Property Schedule, the Companies own all right, title
and interest to, or has the right to use pursuant to a valid license, all
Intellectual Property Rights necessary for the operation of the business
of the Companies, as presently proposed to be conducted, free and clear of
all Liens. Except as set forth on the Intellectual Property Schedule, the
loss or expiration of any Intellectual Property Right or related group of
Intellectual Property Rights owned or proposed to be used by the Companies
would not reasonably be expected to have a material adverse effect on the
conduct of the business of the Companies, and no such loss or expiration
is, to the best of the Company's knowledge, threatened or pending.
(b) Except as set forth on the Intellectual Property Schedule, (i)
the Companies own all right, title and interest in and to or has the
legal, valid and enforceable right to use all of the Intellectual Property
Rights listed on such schedule, free and clear of all Liens, (ii) the
Companies have not received any claims or demands asserting the
invalidity, misuse or unenforceability of any of such Intellectual
Property Rights, and, to the best of the Company's knowledge, there are no
valid grounds for the same (iii) none of the Companies have received any
notices of, and neither is aware of any facts which indicate a likelihood
of, any infringement or misappropriation by, or conflict with, any third
party with respect to such Intellectual Property Rights (including,
without limitation, any demand or request that the Companies license any
rights from a third party), (iv) to the best of the Company's knowledge,
the conduct of the business of the Companies currently proposed to be
conducted, will not infringe, misappropriate or conflict with any
Intellectual Property Rights of other Persons and (v) to the best of the
Company's knowledge, the Intellectual Property Rights owned by or licensed
to the Companies or currently proposed to be used by the Companies, have
not been infringed, misappropriated or conflicted by other Persons.
7.10 Litigation. Except as set forth on the Litigation Schedule
attached hereto as Schedule 7.10, there are no claims, actions or
proceedings instituted, pending or, to the best of the Company's
knowledge, threatened against or affecting the Companies (or to the best
of the Company's knowledge, instituted, pending or threatened against or
affecting any of
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the officers, directors or employees of the Company with respect to their
businesses or proposed business activities), at law or in equity, or
before or by any governmental department, commission, board, bureau,
agency or instrumentality (including, without limitation, any of the
foregoing with respect to the transactions contemplated by this
Agreement); to the best of the Company's knowledge, none of the Companies
are subject to any governmental investigations or inquiries (including,
without limitation, inquiries as to the qualification to hold or receive
any license or permit); and, to the best of the Company's knowledge, there
is no valid basis for any of the foregoing. None of the Companies is
subject to any judgment, order or decree of any court or other
governmental agency, and none of the Companies has received any opinion or
memorandum or legal advise from legal counsel to the effect that it is
exposed, from a legal standpoint, to any liability or disadvantage which
may be material to its business.
7.11 Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement
binding upon the Companies.
7.12 Governmental Consent. Except as set forth on the "Consents
Schedule" attached hereto as Schedule 7.12, no permit, consent, approval
or authorization of, or declaration to or filing with, any governmental
authority is required in connection with the execution, delivery and
performance by the Company of this Agreement or by the Companies of the
other agreements contemplated hereby, or the consummation by the Companies
of any other transactions contemplated hereby or thereby, except for any
of the foregoing required for the physical construction, permitting or
operation of the Projects and except as expressly contemplated herein or
in the exhibits or schedules hereto.
7.13 Insurance. The "Insurance Schedule" attached hereto as Schedule
7.13, contains a description of each insurance policy maintained by the
Companies with respect to its properties, assets and business, and each
such policy is in full force and effect as of the Closing. None of the
Companies are in material default with respect to its obligations under
any insurance policy maintained by it. Except as set forth on the
Insurance Schedule, none of the Companies has any self-insurance programs.
7.14 Employees. The Company is not aware that any executive or key
employee of the Companies or any group of employees of the Companies has
any plans to terminate employment with the Company. The Companies have
complied in all material respects with all laws relating to the employment
of labor (including, without limitation, provisions thereof relating to
wages, hours, equal opportunity, collective bargaining and the payment of
social security and other taxes). Except as set forth on the "Employees
Schedule" attached hereto as Schedule 7.14, none of the Companies, or, to
the best of the Companies' knowledge, any of their employees, is subject
to any noncompete, nondisclosure, confidentiality, employment, consulting
or similar agreements relating to, affecting or in conflict with the
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present or proposed business activities of the Companies, except for
agreements between the Companies and its present and former employees.
7.15 Compliance with Law. None of the Companies has violated any law
or any governmental regulation or requirement which violation has had or
would reasonably be expected to have a material adverse effect upon the
financial condition, operating results, assets, operations, business or
prospects of the Companies, and the Company has not received notice of any
such violation. None of the Companies is subject to any clean up
liability, or has reason to believe it may become subject to any clean up
liability, under any federal, state or local environmental law, rule or
regulation.
7.16 Affiliated Transactions. Except for the Stockholders Agreement,
the Registration Agreement, and the Employment Agreements, and except as
set forth on the Affiliated Transactions Schedule" attached hereto as
Schedule 7.16, no officer, director, employee, shareholder or Affiliate of
the Companies, or (to the knowledge of the Companies) any individual
related by blood, marriage or adoption to any such individual or any
entity in which any such Person or individual owns any beneficial
interest, is a party to any agreement, contract, commitment or transaction
with the Companies or has any interest in any property used by the
Companies.
7.17 Real Property Holding Corporation Status. Since their
respective dates of incorporation, none of the Companies has been, and as
of the dates of any of the Closings shall not be, a "United States real
property holding corporation", as defined in Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended, and in Section 1.897-2(b) of
the Treasury Regulations issued thereunder. None of the Companies has any
current plans or intentions which would cause the Companies, as the case
may be, to become a "United States real property holding company," and the
Companies have filed with the United States Internal Revenue Service all
statements, if any, with its United States income tax returns which are
required under Section 1.897-2(h) of the Treasury Regulations.
7.18 Disclosure. To the best of the Companies' knowledge, neither
this Agreement nor any of the exhibits, schedules or attachments hereto,
nor any written statements, documents, certificates or other items
delivered at any of the Closings to the Purchaser by or on behalf of the
Company with respect to the transactions contemplated hereby, contain any
untrue statement of a material fact; provided that with respect to the
financial projections furnished to the Purchaser by the Companies, the
Companies represent and warrant only that such projections were prepared
in good faith based upon assumptions reasonably believed by the Companies
to be reasonable and fair as of the date the projections were prepared in
the context of the Companies' history and current and reasonably
foreseeable business conditions. There is no fact which the Companies have
not disclosed to the Purchasers in writing and of which the Companies are
aware (other than general economic conditions) and which has had or would
reasonably be expected to have a material adverse effect upon the
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financial condition, operating results, assets, customer or supplier
relations, employee relations, business or prospects of the Companies.
7.19 Knowledge. As used in this Section 7, the terms "best of
knowledge" or "aware" with reference to the Company shall mean and be
limited to the actual knowledge or awareness of ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, or, in the case of
an Officer's Certificate, the individual signing such Officer's
Certificate.
7.20 No Registration. Assuming the truth and accuracy of the
representations set forth in Section 8 hereof and in the investment letter
to be delivered to the Company in connection herewith, the offers and
sales of the SDI Stock pursuant to the terms hereof are not required to be
registered under the Securities Act or any state securities laws.
8. Purchasers' Representations and Warranties. Purchaser hereby represents
and warrants to the Companies that:
8.1 Organization, etc. Purchaser is a corporation, duly formed or
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization or formation. Purchaser possesses all
requisite power and authority to own such capital stock and to carry out
the transactions contemplated by this Agreement.
8.2 Authorization; No Breach. The execution, delivery and
performance of this Agreement, the Registration Joinder Agreement, the
Stockholders Joinder Agreement, the Commercial Agreement, the Technology
Agreement, and all other agreements and transactions contemplated hereby
and thereby to which purchaser is a party, have been duly authorized by
Purchaser. This Agreement, the Registration Joinder Agreement, the
Stockholders Joinder Agreement, the Commercial Agreement, the Technology
Agreement, and all other agreements and transactions contemplated hereby
and thereby, to which agreements Purchaser is a party, each constitute a
valid and binding obligation of Purchaser, enforceable against Purchaser
in accordance with its terms, except as any of them may be affected by
laws relating generally to the enforcement of creditors' rights and
general principles of equity. The execution and delivery by Purchaser of
the agreements to be performed hereunder, and the fulfillment of and
compliance with the respective terms hereof and thereof by Purchaser, do
not and will not (a) conflict with or result in a breach of the terms,
conditions or provisions of, (b) constitute a default under, or (c) result
in a violation of, Purchaser's organizational documents or any law,
statute, rule, regulation, instrument, order, judgment or decree to which
Purchaser is subject or any agreement or instrument to which Purchaser is
a party.
8.3 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Either (a) no filing is or was required to be
made by Purchaser with the Federal Trade Commission or the Antitrust
Division of the United States Department of Justice pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976,
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as amended, with respect to the transactions contemplated hereby or (b) if
such filing was required, the waiting period with respect thereto has
expired or approval has been received.
8.4 Investment Letters. This Agreement is made in reliance upon
Purchaser's representations to the Company, which by Purchaser's execution
hereof Purchaser hereby confirms, that the SDI Stock issuable to Purchaser
hereunder is being acquired solely for investment for Purchaser's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that Purchaser has no present
intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Purchaser further
represents that Purchaser does not have any contract, undertaking,
agreement, or arrangement with any person to sell, transfer, or grant
participations to such person or to any third person with respect to any
of the SDI Stock that is the subject of this Agreement. Purchaser has
executed and delivered to the Companies a separate letter containing
additional representations, warranties and covenants, upon which the
Companies are relying in entering into and performing its obligations
under this Agreement. Purchaser, after conducting its due diligence
investigation and analysis of the Company, believes that it has received
all of the information it considers necessary or appropriate for deciding
whether to purchase the SDI Stock described herein, and Purchaser
acknowledges that it has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the
offering in connection herewith and regarding the Companies; provided,
however, that nothing herein shall limit, negate, or modify the Company's
representations and warranties to Purchaser in connection with this
Agreement or the Purchaser's right to rely thereon.
8.5 Compliance with the Laws of Germany. Purchaser is in compliance
with all laws, rules, and regulations of the Federal Republic of Germany
applicable to its purchase of the SDI Stock, to its status as a
prospective Stockholder of the Company, and to the contemplated commercial
relationships described throughout this Agreement; that the Company's
offering to sell SDI Stock to Purchaser has been made entirely within the
jurisdiction of the United States of America and does not constitute an
offering requiring governmental approval, authorization, or consents by
the Federal Republic of Germany; that it is and will be in compliance with
any foreign exchange restrictions applicable to this transaction; and that
it will obtain any other required governmental consents or approvals made
necessary by its involvement in connection herewith either by the Federal
Republic of Germany or in any other foreign jurisdiction where it plans to
operate hereunder.
9. Use of Proceeds. The Company hereby agrees that the Companies will
invest the additional equity from the sale of the SDI Stock to Purchaser
primarily to finance the construction of the Phase II Project and for the
working capital of the Companies relating to the operation of the Phase II
Project itself. Notwithstanding anything herein to the contrary, however,
expressed or implied, all final decisions concerning the design, configuration,
equipment or technology to be employed in the cold rolling facility, or
concerning Company investments and/or capital commitments in connection with
other technologies, such as (but not limited to) the development
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of scrap substitutes, shall remain the exclusive province of the Company Board
of Directors; provided, however, that Company would seek and duly consider
Purchaser's input concerning such matters, either through Purchasers Board of
Directors representation (as contemplated by Section 4.7), or otherwise.
10. Conditions of the Company's Obligations at the Closings. The
obligation of the Company to perform at any of the Closings its obligations to
be then performed is subject to the satisfaction as of each of the Closings of
the following conditions:
10.1 Representations and Warranties; Covenants. The representations
and warranties of the Purchaser contained in Section 8 hereof shall be
true and correct in all material respects at and as of the particular
Closing as though then made.
10.2 Opinion of Counsel. The Company shall have received an opinion
of counsel to Purchaser substantially in the form and substance set forth
in Exhibit 10.2 attached hereto and reasonably satisfactory to the
Company.
10.3 Investment Letters. The Company shall have received from
Purchaser the investment letter referenced in Section 8.4 hereof.
10.4 Agreements. The parties thereto shall have entered into all of
the Agreements to be Performed Hereunder.
11. Definitions.
"Affiliate" of any particular Person means any other Person controlling,
controlled by or under common control with such particular Person, where
"control" means the possession, directly or indirectly, of the power to direct
the management and policies of a Person whether through the ownership of voting
securities, contract or otherwise.
"Common Stock" means the Class A Common.
"Companies" shall mean Steel Dynamics Holdings, Inc., Steel Dynamics Sales
Corp., and Steel Dynamics, Inc.
"Intellectual Property Rights" means all (a) patents, patent applications,
patent disclosures and inventions, (b) trademarks, service marks, trade names,
logos and corporate names and registrations and applications for registration
thereof, together with all of the goodwill associated therewith, (c) copyrights
(registered or unregistered) and copyrightable works and registrations and
applications for registration thereof, (d) compute software, data, data bases
and documentation thereof, (e) trade secrets and other confidential information
(including, without limitations, ideas, formulas, compositions, inventions
(whether patentable or unpatentable and whether or not reduced to practice),
know-how, manufacturing and production processes and techniques, research and
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development information, drawings, specifications, designs, plans, proposals,
technical data, copyrightable works, financial and marketing plans and customer
and supplier lists and information), (f) other intellectual property rights and
(g) copies and tangible embodiments thereof (in whatever form or medium,
including, without limitation, negatives, plates and video and film masters).
"Liens" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against any of the Companies or any Affiliate thereof,
any filing or agreement to file a financing statement as debtor under the
Uniform Commercial Code or any similar statute other than to reflect ownership
by a third party of property leased to any of the Companies under a lease which
is not in the nature of a conditional sale or title retention agreement, or any
subordination arrangement in favor of another Person (other than any
subordination arising in the ordinary course of business).
"Officer's Certificate" means a certificate signed by the Company's
president or its chief financial officer, stating that (a) the officer signing
such certificate has made or has caused to be made such investigations as are
reasonably necessary in order to permit him to verify the accuracy of the
information set forth in such certificate and (b) to the best of such officer's
knowledge, such certificate does not misstate any material fact and does not
omit to state any fact necessary to make the certificate not misleading.
"Permitted Transferee" means any transferee of Class A Common in a
transfer permitted by clause (i) and clauses (iv) through (xiii) of Section 2(f)
of the Stockholders Agreement.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Phase II Project" means the Company's proposed hot dip galvanizing and
cold rolling plant intended for construction at its ▇▇▇▇▇▇, Indiana site.
"Project" means the Company's thin slab cast mini-mill in ▇▇▇▇▇▇, Indiana.
"Restricted Securities" means the Class A Common issued hereunder and any
securities issued with respect to such Class A Common by way of any stock
dividend or stock split, or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Restricted Securities, such securities will cease to be Restricted
Securities when they have (a) been effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
(b) become eligible for sale pursuant to Rule 144 or Rule 144A of the Securities
and Exchange Commission (or any similar rules then in force) or (c) been
otherwise transferred and new securities for them not bearing the securities Act
Legend set forth in Section 6 of the Stockholders Agreement have been delivered
by the Company in accordance with Section 4B or 4D. Whenever any particular
securities cease to be Restricted
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Securities, the holder thereof will be entitled to receive from the company,
without expense, new securities of like tenor not bearing a Securities Act
Legend of the character set forth in Section 6 of the Stockholders Agreement.
"Rule 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act as such rule may be amended from time to
time, or any similar rule then in force.
"Rule 144A" means Rule 144A promulgated by the Securities and Exchange
Commission under the Securities Act as such rule may be amended rom time to
time, or any similar rule then in force.
"Securities Act " means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes the United States government
agency of that name and any governmental body or agency succeeding to the
functions thereof.
"Warrant Holders" means the holders of warrants to purchase shares of
Class A Common issued pursuant to the Subordinated Loan Agreement.
12. Miscellaneous.
12.1 Remedies. The holders of the SDI Stock acquired hereunder
(directly or indirectly) will have all of the rights and remedies set
forth in this Agreement and the Articles of Incorporation, and all of the
rights and remedies which such holders have been granted at any time under
any other agreement or contract, and all of the rights and remedies which
such holders have under any law. Any Person having any rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages by reason of any breach of any provision
of this Agreement, and to exercise all other rights granted by law.
12.2 Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provisions hereof shall be
effective against the Company or the Purchaser unless such modification,
amendment or waiver is approved in writing by the person against which
such modification, amendment or waiver is intended to be enforced. The
failure of any party to enforce any provision of this Agreement or under
any agreement contemplated hereby or under the Articles of Incorporation
or the By-Laws shall in no way be construed as a waiver of such provisions
and shall not affect the right of such party thereafter to enforce each
and every provision of this Agreement, any agreement referred to herein,
the Articles of Incorporation, or the By-Laws in accordance with their
terms.
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12.3 Confidentiality. Purchaser will treat and hold as such all of
the Confidential Information, as that term was defined in the
Confidentiality Agreement between Purchaser and the Company, dated May 25,
1995, and will refrain from using any of such Confidential Information
except in connection with this Agreement; and Purchaser will deliver
promptly to the Company or, at the request and option of the Company, will
destroy all tangible embodiments and all copies of Confidential
Information which are in its possession as a result of its examination of
financial statements, reports, and other materials submitted or made
available by the Company during the course of Purchaser's examinations,
inspections, or due diligence work, unless such information loses its
status as Confidential Information as provided in the Confidentiality
Agreement. Purchaser may, however, disclose such Confidential Information
to its attorneys, accountants, consultants, and other professionals to the
extent necessary to obtain their services in connection with this
transaction, all as set forth in the Confidentiality Agreement, as well as
to any prospective Affiliate, shareholder, partner, or subsidiary of
Purchaser, so long as that person agrees in writing to be bound by the
provisions thereof. In the event that Purchaser is requested or required
(by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or
similar process) to disclose any Confidential Information, Purchaser will
notify the Company promptly of the request or requirement, so that the
Company may seek an appropriate protective order or waive compliance with
the provisions of this Section 12.3 and of the Confidentiality Agreement.
If, in the absence of a protective order or the receipt of a waiver
hereunder, Purchaser, on the advice of counsel, is compelled to disclose
any Confidential Information to any tribunal or risk liability for
contempt, Purchaser may disclose the Confidential Information to the
tribunal, provided that it use its reasonable best efforts to obtain an
order or other assurance, at the Company's request, that confidential
treatment be accorded to such portion of the Confidential Information
required to be disclosed as the Company shall designate. The foregoing
provisions shall not apply to any Confidential Information which is
generally available to the public immediately prior to the time of
disclosure.
12.4 Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in
connection herewith will survive the execution and delivery of this
Agreement, regardless of any investigation made by the Companies or by
Purchaser or on their behalf.
12.5 Successors and Assigns.
(a) Except as otherwise expressly provided herein, all
agreements contained in this Agreement by or on behalf of any
of the parties hereto will bind and inure to the benefit of
the respective successors and assigns of such parties whether
so expressed or not, so long as such successors and assigns
execute a counterpart hereof. In addition, the provisions of
this Agreement which are for any Purchaser's benefit as the
purchaser or holder of SDI Stock,
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are also for the benefit of and enforceable by any subsequent
Permitted Transferee of such Purchaser's SDI Stock.
(b) If a sale, transfer, assignment or other disposition
of any shares of SDI Stock is made in accordance with the
provisions of this Agreement to any Person and such shares
remain Restricted Securities immediately after such
disposition, such Person shall, at or prior to the time such
shares are acquired, execute a counterpart of this Agreement
with such modifications thereto as may be necessary to reflect
such acquisition, and such other documents as are necessary to
confirm such Person's agreement to become a party to, and to
be bound by, all covenants, terms and conditions of this
Agreement, the Stockholders Agreement, The Stockholders
Joinder Agreement, the Registration Agreement, and the
Registration joinder Agreement, as theretofore amended.
(c) PSAG may assign its rights under this Agreement to
any PSAG Affiliate, and may delegate its obligations hereunder
to any such Affiliate, so long as PSAG remains liable to SDI
for the performance of all such obligations as a direct
obligor and not as a guarantor or accommodation maker.
12.6 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule in any
jurisdiction, such provision will be ineffective only to the extent of
such invalidity, illegality or unenforceability in such jurisdiction,
without invalidating the remainder of this Agreement in such jurisdiction
or any provision hereof in any other jurisdiction.
12.7 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
12.8 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
12.9 Governing Law. All issues and questions concerning the
construction, validity, interpretation and enforceability of this
Agreement and the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of Indiana, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Indiana or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of Indiana.
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12.10 Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when personally
delivered or received by certified mail, postage prepaid and return
receipt requested, or sent by guaranteed overnight courier service,
charges prepaid. Notices, demand and communications will be sent to
Purchaser at the address indicated below:
Notices to Purchaser:
Preussag ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: 05341/213603 (4)
Fax: 05341/212045
With Copy To:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to the Company at the address indicated below:
Notices to the Company:
Steel Dynamics Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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With a Copy to:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending
party.
12.11 Expenses. Except as otherwise expressly provided in this
Agreement, each party to this Agreement shall bear its own expenses in
connection with the negotiation, execution, delivery and enforcement
hereof.
12.12 Entire Agreement. Except as otherwise expressly set forth
herein, and except for the provisions of the Confidentiality Agreement
between the Company and Purchaser, dated May 25, 1995, which shall
continue to apply in all events, this Agreement and any other agreement or
instrument executed in connection herewith or expressly referred to herein
embodies the complete agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersede and preempt any
prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter
hereof in any way.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement on the day and year first above written.
STEEL DYNAMICS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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PREUSSAG ▇▇▇▇▇, ▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇
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Title: _____________________________________
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