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Exhibit 10.36
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of September 10, 1996 (this
"Agreement"), is made by and among Steel Dynamics Holdings, Inc., an Indiana
corporation (the "Company"), Sumitomo Corporation of America, a corporation
incorporated under the laws of the State of New York ("SCOA"), and Sumitomo
Corporation, a corporation incorporated under the laws of Japan ("SC," and
together with SCOA, the "Purchasers").
Except as otherwise indicated, capitalized terms used herein are defined
in Section 10 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. Subject to the terms of this Agreement,
and, to the conditions set forth in Section 2, the Company will sell and issue
to (i) SC twenty-seven thousand four hundred and fifty-seven (27,457) shares of
the Company's authorized but unissued voting Common Stock, at a price of Two
Hundred Ninety-five and no/100 Dollars ($295.00) per share (the "Per Share
Purchase Price"), for a total consideration of Eight Million One Hundred
Thousand and no/100 Dollars ($8,100,000.00) and (ii) SCOA eighteen thousand
three hundred and six (18,306) shares of the Company's authorized but unissued
voting Common Stock, at the Per Share Purchase Price for a total consideration
of Five Million Four Hundred Thousand and no/100 Dollars ($5,400,000.00). The
voting Common Stock that Purchasers are to purchase hereunder is the same class
currently described as "Class A Common Stock," but such designation may be
eliminated in favor of a single class of voting Common Stock. For purposes of
this Section 1 and elsewhere in the Agreement, the Company's Class A Common
Stock to be purchased hereunder shall be referred to as the "SDI Stock."
2. Conditions of Purchasers' Obligations at Closing. Purchasers'
obligations at the Closing to deliver to the Company the consideration for the
SDI Stock to be sold to Purchasers at such time shall be subject, as of the
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 to the approval of not less than seventy percent
(70%) of the Company's existing stockholders, excluding Purchasers, and
including waivers by existing stockholders and Warrant Holders, with
respect to such SDI Stock, of their limited preemptive rights thereunder,
shall have been secured.
2.2 Lender Approvals. All requisite approvals, waivers, or consents
with respect to Purchasers' purchase of the SDI Stock, including (but not
limited to) waiver of any mandatory prepayment requirements, shall have
been secured from the Company's senior and/or subordinated Lenders.
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2.3 Stockholders Agreement. The Company, the Purchasers, the ▇▇▇▇
Group, GECC, the Whitney Group, Heavy Metal, Keylock, Mazelina, Low Cost,
Preussag, the Subdebt Group, and the Management Group, as those persons
are identified and described in that certain Stockholders Agreement dated
June 30, 1994, as previously amended (the "Stockholders Agreement") and
attached hereto as Exhibit 2.3A, Exhibit 2.3B and Exhibit 2.3C, shall have
entered into an agreement, in substantially the form and substance set
forth in Exhibit 2.3D attached hereto (the "S/H Amendment No. 3"), adding
Purchasers as parties thereto, but without giving Purchasers the right to
designate a representative to the Company's Board of Directors, and the
S/H Amendment No. 3 shall not have been rescinded or materially amended or
modified.
2.4 Registration Agreement. The Company, the Purchasers, the ▇▇▇▇
Stockholders, GECC, Heavy Metal, the Keylock Stockholders, the Whitney
Stockholders, Preussag, the Management Stockholders, and the Warrant
Holders, as those persons are identified and described in that certain
Registration Agreement dated June 30, 1994, as previously amended (the
"Registration Agreement") and attached hereto as Exhibit 2.4A, Exhibit
2.4B, and Exhibit 2.4C, shall have entered into an agreement, in
substantially the form and substance set forth in Exhibit 2.4D attached
hereto (the "Registration Amendment No. 3"), adding Purchasers as parties
thereto, and, inter alia, with respect to the SDI Stock sold to Purchasers
hereunder, certain rights, as limited therein, which shall not become
effective until six (6) months after the Closing.
2.5 Representations and Warranties; Covenants. The representations
and warranties of the Company contained in Section 5 hereof shall continue
to be true and correct in all material respects at and as of the Closing,
as though then made again, except to the extent of changes caused by the
transactions expressly contemplated herein.
2.6 Securities Law Compliance. The Company shall have made any
necessary filings and/or given all necessary notices under applicable
federal and state securities laws, if required in connection with the
particular exemptions from the registration requirements upon which the
Company is relying, in order to consummate the issuance and sale of the
SDI Stock at the Closing as an exempt private placement.
2.7 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 5.8) wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge would (a) prevent or
enjoin the consummation of purchase of SDI Stock contemplated by this
Agreement, (b) cause the purchase of the SDI Stock 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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2.8 Governmental Filings, Consents and Approvals. All federal, state
and local governmental filings, consents and approvals, if any, necessary
for the consummation of the Closing shall have been made or obtained.
2.9 Opinion of the Company's Counsel. The Purchasers shall have
received from counsel for the Company an opinion substantially in the form
set forth on Exhibit 2.9 attached hereto, which shall be addressed to the
Purchasers and dated the date of the Closing.
2.10 Closing Documents. The Company shall have delivered to the
Purchasers all of the following documents:
(a) an Officer's Certificate, dated the date of the Closing,
stating that the conditions specified in Sections 2.1 through 2.8,
inclusive, 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
Amendment No. 3, and the S/H Amendment No. 3, and each of the other
agreements contemplated hereby at or prior to the 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 of the Company and a copy of the Articles of Incorporation
of IDI;
(d) 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;
(e) copies of all third party and/or governmental consents,
approvals, waivers, and filings, if any, required in connection with
the consummation of the transactions hereunder to the extent
required to be obtained or filed prior to the Closing; and
(f) one or more stock certificates duly issued to Purchasers
for the number of shares of SDI Stock.
2.11 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 Closing, and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to the Purchasers.
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2.12 Additional Agreements.
(a) If and when legally constituted as a subsidiary of the
Company (and if prior to Closing), subject to the understanding of
the parties described in Section 7, IDI and SCOA shall have entered
into the Sale of Excess Product Agreement, to be effective only if
and when the project known as "Iron Dynamics" ("IDI") is fully
funded, built, and commences operations, in substantially the form
and substance set forth in Exhibit 2.12(a) attached hereto. If, on
or prior to the Closing (unless extended by mutual agreement of the
parties), IDI has not been legally constituted as a subsidiary of
the Company, with all necessary Lender approvals as to the form,
nature, and substance of the proposed IDI Project, the Sale of
Excess Product Agreement shall no longer be deemed a condition of
the Closing, nor the basis for any claim by Purchasers for recision
of their purchase of stock hereunder, for specific performance, or
for damages. The parties in their discretion, however, may still
wish to enter into such Agreement after the closing.
(b) The Company and SCOA shall have entered into the "Second
Look" Export Distribution Agreement, in substantially the form and
substance set forth in Exhibit 2.12(b) attached hereto.
(c) If and when legally constituted as a subsidiary of the
Company (and if prior to Closing), subject to the understanding of
the parties described in Section 7, IDI, SDI and Purchasers shall
have entered into separate License Agreements, to be effective only
if and when IDI is fully funded, built, and commences operations,
substantially covering the terms and conditions described in
Paragraph 7(c) of the Letter of Intent dated July 19-22, 1996,
between the Company and Purchasers, which terms, for reference
purposes, are deemed incorporated herein and are binding and
enforceable; provided, however, that with respect to the License
Agreement described in Paragraph 7(c) of such Letter of Intent, the
parties agree that (i) the definitions of Product and Process set
forth in Section 10 of this Agreement shall control, (ii) IDI and
Purchasers shall enter into a separate License Agreement with
respect to that part of the Process involving the production of DRI,
and (iii) SDI and Purchasers shall enter into a separate License
Agreement with respect to that part of the Process involving the
melting and processing of DRI into liquid pig iron. If, on or prior
to the Closing (unless extended by mutual agreement of the parties),
IDI has not been legally constituted as a subsidiary of the Company,
with all necessary Lender approvals as to the form, nature, and
substance of the proposed IDI Project, the License Agreements shall
no longer be deemed a condition of the Closing, nor the basis for
any claim by Purchasers for recission of their purchase of stock
hereunder, for specific performance, or for damages. The parties in
their sole discretion, however, may still wish to enter into such
Agreement after the closing.
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(d) If and when legally constituted as a subsidiary of the
Company (and if prior to Closing), subject to the understanding of
the parties described in Section 7, IDI and SCOA shall have executed
a Stipulation and Agreement Regarding Raw Materials and Supplies and
Equipment and Machinery, in substantially the form and substance set
forth in Exhibit 2.12(d) attached hereto. If, on or prior to the
Closing (unless extended by mutual agreement of the parties), IDI
has not been legally constituted as a subsidiary of the Company,
with all necessary Lender approvals as to the form, nature, and
substance of the proposed IDI Project, the Stipulation and Agreement
described herein shall no longer be deemed a condition of the
Closing, nor the basis for any claim by Purchasers for recission of
their purchase of stock hereunder, for specific performance, or for
damages. The parties in their sole discretion, however, may still
wish to enter into such Agreement after the closing.
2.13 Waiver. Any condition specified in this Section 2 may be waived
if consented to in writing by Purchasers.
3. The Closing and Payment. The Closing, contemplated by Section 1.1, will
occur, on or before September 10, 1996. The Closing will take place at 10:00
A.M., E.S.T. on such 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 Purchasers.
4. Restrictions on Transfers; Stockholders Agreement.
4.1 Restrictions. The SDI Stock constitutes Restricted Securities,
and transfer thereof is restricted because of restrictions on transfer
imposed by the securities laws. Purchasers agree that the SDI Stock, as
Restricted Securities, is only transferable pursuant to (a) public
offerings registered under the Securities Act, (b) Rule 144, or Rule 144A
or any similar rules then in effect) if such rules are available, (c)
Regulation S of the Securities Act or any similar regulations then in
effect if Regulation S or such regulations are available, (d) subject to
the conditions specified in Section 4.2 below, any other legally available
means of transfer pursuant to the Securities Act and any applicable
provisions of state securities laws that are consistent, and (e) in any
and all events, subject to the transfer restrictions in the Stockholders
Agreement, as well as the terms of any "Lock-Up Agreement" entered into
between the Company, certain of its stockholders, and the Company's
underwriters in connection with any forthcoming registered public
offerings of the Company's securities. If requested by the Company,
Purchasers agree to execute such a Lock-Up Agreement that will provide
that Purchasers shall not sell any of their SDI Stock for one hundred
eighty (180) days after the effective date of the Registration Statement
for the initial public offering of the Common Stock of the Company and
shall contain such other reasonable terms and conditions customarily
requested by the underwriters on similar transactions.
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4.2 Procedure for Transfer. Subject to such other restrictions on
transfer as are set forth in the Stockholders Agreement or in any Lock-Up
Agreement, in connection with any transfer of any Restricted Securities
Purchasers will deliver written notice to the Company, describing in
reasonable detail the proposed transfer, together with an opinion of
counsel knowledgeable in securities law matters, and in form and content
satisfactory to counsel for the Company, to the effect that such transfer
of Restricted Securities may be effected without registration of such
Restricted Securities under the Securities Act or under applicable state
securities laws. In addition, if Purchasers deliver to the Company an
opinion of such counsel, in form and substance reasonably satisfactory to
the Company, that subsequent transfer of such Restricted Securities by
Purchasers may be freely made without restriction 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 4.3; provided, however, if any
securities laws holding periods are applicable, such holding periods shall
have passed.
4.3 Restrictive Transfer Legend. Purchasers agree that the
certificates evidencing the SDI Stock will bear the following legend
disclosing the transfer restrictions set forth herein:
NOTICE OF RESTRICTIONS ON TRANSFER
THESE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933 OR UNDER
APPLICABLE STATE SECURITIES LAWS, HAVING BEEN OFFERED AND SOLD
PURSUANT TO ONE OR MORE EXEMPTIONS THEREUNDER THAT LIMIT FURTHER
TRANSFER OR DISPOSITION. ACCORDINGLY, THESE SHARES MAY NOT BE
FURTHER TRANSFERRED WITHOUT REGISTRATION, UNLESS, IN THE OPINION OF
THE COMPANY'S COUNSEL, SUCH TRANSFER MAY BE EFFECTED IN A
TRANSACTION CONSISTENT WITH SUCH EXEMPTIONS.
TRANSFER OF THESE SHARES IS FURTHER RESTRICTED BY THE TERMS OF A
STOCKHOLDERS AGREEMENT AND A REGISTRATION AGREEMENT, BOTH DATED AS
OF JUNE 30, 1994, AND BOTH AS AMENDED, COPIES OF EACH OF WHICH ARE
ON FILE AT THE OFFICES OF THE COMPANY IN ▇▇▇▇▇▇, INDIANA.
4.4 Transferee. Upon request of the Purchasers, the Company shall
promptly supply to the Purchasers or their prospective transferee all
information required to be delivered in connection with a transfer
pursuant to Rule 144A.
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4.5 Legend Removal. If any Restricted Securities become eligible for
sale pursuant to Rule 144(k) promulgated under the Securities Act, the
Company will promptly upon the request of the Purchasers deliver new
certificates for such Restricted Securities which do not bear the
Securities Act legend set forth in Section 4.3 of this Agreement.
5. Representations, Warranties, and Covenants of the Company.
The Company hereby represents and warrants to the Purchasers that, as of
the Closing, and, except as otherwise stated herein:
5.1 Organization, etc. Each of the Company, Steel Dynamics Sales
Corp., Inc. ("SDSCI"), Steel Dynamics, Inc. ("SDI") (SDI, together with
the Company and SDSCI are referred to collectively as the "Companies") is
a corporation duly organized and validly existing under the laws of the
State of Indiana and, at the Closing (the "Closing"), 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
Closing, 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 their 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 any of the Company's physical
plant, facilities, project, or equipment) and to carry out the
transactions contemplated by this Agreement.
5.2 Capital Stock and Related Matters.
(a) As of the date hereof, the authorized capital stock of the
Company will consist of 10,000,000 shares of Class A or plain (without a
class reference) voting Common Stock ("Common Stock"), par value $0.01 per
share, and may still consist of 500,000 shares of Class B non-voting
Common Stock, par value $0.01 per share.
(b) Except as set forth on the "Capitalization Schedule" attached
hereto as Schedule 5.2(b), as of the Closing, the Company will have no
outstanding stock or securities convertible or exchangeable for any shares
of its capital stock, nor will it 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 the Closing
with respect to all outstanding options and rights to acquire the capital
stock of the Companies: the holder, the number of shares covered, the
exercise price and the expiration date, if applicable. As of the Closing,
except as contemplated by this Agreement, the Company will not 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
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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, as amended.
(c) As of the date of this Agreement (i) the authorized capital
stock of SDSCI will consist of 10,000 shares of Class A Common Stock, par
value $.01 per share, and (ii) SDSCI will have issued and there will be
outstanding 100 such shares, owned entirely by the Company.
(d) As of the date of this Agreement (i) the authorized capital
stock of SDI will consist of 10,000 shares of Class A Common Stock, par
value $.01 per share, and (ii) SDI will have issued and there will be
outstanding 100 such shares, all of which will be owned by SDSCI.
(e) As of the Closing, (i) the outstanding Common Stock of the
Company, or rights to acquire the same, 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., Inc., if it
continues to exist, will be held exclusively by the Company, the
outstanding common stock of Steel Dynamics, Inc. will be held exclusively
by Steel Dynamics Sales Corp., if it continues to exist, or by the
Company, 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 the Closing, all of the outstanding
shares of the Companies' capital stock will have been duly authorized,
validly issued, fully paid, and nonassessable.
(f) As of the Closing, there will be no statutory and no unwaived
contractual shareholder preemptive rights or rights of refusal with
respect to the issuance of the SDI Stock to Purchasers hereunder, except
as described in Schedule 5.2(f) 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, each as amended.
(g) As of the Closing, upon the issuance of the SDI Stock to the
Purchasers, the receipt of the stock certificate(s) for the SDI Stock and
the payment of the purchase price for the SDI Stock, the Purchasers shall
receive good and marketable title to the SDI Stock, free and clear of all
Liens.
5.3 Subsidiaries; Investments. Other than Steel Dynamics Sales
Corp., Inc., which may or may not continue to exist at Closing, and other
than Steel Dynamics, Inc.,
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which may prior or subsequent to Closing merge with and into the Company
or may be the survivor of a merger of the Company into it, the Company
does not currently have any Subsidiaries. IDI may become a wholly-owned
subsidiary of Steel Dynamics, Inc. or the Company after closing. Save for
its $1,000,000 investment in Qualitech Steel Corporation, 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.
5.4 Authorization; No Breach. The execution, delivery and
performance of this Agreement, the Registration Amendment No. 3, and the
S/H Amendment No. 3, 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 Amendment
No. 3, and the S/H Amendment No. 3, 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 Amendment No.
3, and, subject to Lender approval, the S/H Amendment No. 3, 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, as amended, or By-Laws, as
amended, 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.
5.5 Conduct of Business; Liabilities. Attached hereto as Exhibit 5.5
is an audited consolidated balance sheet of the Companies as at December
31, 1995 (the "Balance Sheet") and an unaudited Balance Sheet as at July
27, 1996 (the "Unaudited Balance Sheet"). Both the Balance Sheet and
Unaudited Balance Sheet are accurate and complete in all material
respects, are consistent with the books and records of the Companies
(which, in turn, are accurate and complete in all material respects), and
have been prepared in accordance with U.S. generally accepted accounting
principles ("GAAP"), consistently applied. Except as set forth on the
"Liabilities Schedule" attached hereto as Schedule 5.5, none of the
Companies, as of the date hereof, have any material 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 the date hereof, or any action or inaction at or prior
to the date hereof, other than: (a) liabilities set forth on the Balance
Sheet (including any
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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,
obligations, or claims 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.
5.6 Financial Statements and Absence of Material Adverse Changes.
The Companies' consolidated financial statements dated as of December 31,
1995 attached hereto, fairly present the assets and liabilities of the
Companies as of December 31, 1995, and the results of operations of the
Companies for the period ending December 31, 1995, in accordance with U.S.
generally accepted accounting principles applied on a basis consistent
with prior periods. Since December 31, 1995, there has been no material
adverse change in the business or prospects of the Companies.
5.7 Intellectual Property Rights.
(a) The Company neither owns nor has applied for any patents, and
has applied for a trademark registration for the symbol "SDI." The
Companies have 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, and the loss or expiration of any such Intellectual Property
Right or related group of Intellectual Property Rights used by the Company
would not reasonably be expected to have a material adverse effect on the
conduct of the business of the Company, and no such loss or expiration is,
to the best of the Company's knowledge, threatened or pending.
(b) (i) The Companies own all right, title and interest in and to or
have the legal, valid and enforceable right to use the Intellectual
Property Rights they are using or plan to use, 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) except noted in Section 5.8,
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.
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5.8 Litigation. Except as set forth on the Litigation Schedule
attached hereto as Schedule 5.8, 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 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.
5.9 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.
5.10 Governmental Consent. 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.
5.11 ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇. Either (a) no filing is or was required to
be made by the Company with the Federal Trade Commission (the "FTC") or
the Antitrust Division of the United States Department of Justice (the
"DOJ") pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of
1976, as amended, with respect to the transactions contemplated hereby or
(b) if such filing was required to be made by the Company, such filing has
been made and all required waiting periods with respect thereto have
expired or been terminated without comment or notice from the FTC or the
DOJ.
5.12 Insurance. The "Insurance Schedule" attached hereto as Schedule
5.12, 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.
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5.13 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 5.13, 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
present or proposed business activities of the Companies, except for
agreements between the Companies and its present and former employees.
5.14 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.
5.15 This section has intentionally been left blank.
5.16 This section has intentionally been left blank.
5.17 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 the Closing to the Purchasers by or on behalf of the Company
with respect to the transaction contemplated hereby, contain any untrue
statement of a material fact; provided that with respect to the financial
projections furnished to the Purchasers 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
financial condition, operating results, assets, customer or supplier
relations, employee relations, business or prospects of the Companies.
5.18 No Registration. Assuming the truth and accuracy of the
representations set forth in Section 6 and in the Investment Letter
attached hereto as Exhibit 5.18, to be delivered to the Company in
connection herewith, the offer and sale of the SDI Stock
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pursuant to the terms hereof are not required to be registered under the
Securities Act or any state securities laws.
6. Purchasers' Representations and Warranties. Purchasers hereby represent
and warrant to the Companies that:
6.1 Organization, etc. Purchasers are corporations, duly formed or
organized, validly existing and in good standing under the laws of the
jurisdiction of their organization or formation, with full authority to
engage in this transaction. Purchasers possess all requisite power and
authority to own the SDI Stock and to carry out the transaction
contemplated by this Agreement.
6.2 Authorization; No Breach. The execution, delivery and
performance of this Agreement, the Registration Amendment No. 3 and the
S/H Amendment No. 3, and all other agreements and transaction contemplated
hereby and thereby to which Purchasers are a party, have been duly
authorized by Purchasers. This Agreement, the Registration Amendment No.
3, and the S/H Amendment No. 3, and all other agreements and transactions
contemplated hereby and thereby, to which agreements Purchasers are a
party, each constitute a valid and binding obligation of Purchasers,
enforceable against Purchasers 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 Purchasers of the agreements to be performed hereunder, and
the fulfillment of and compliance with the respective terms hereof and
thereof by Purchasers, 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, Purchasers' organizational
documents or any law, statute, rule, regulation, instrument, order,
judgment or decree to which Purchasers are subject or any agreement or
instrument to which Purchasers are a party.
6.3 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Either (a) no filing is or was required to be
made by Purchasers with the FTC or the DOJ pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976, as amended, with
respect to the transactions contemplated hereby or (b) if such filing was
required to be made by the Company, such filing has been made and all
required waiting periods with respect thereto have expired or been
terminated without comment or notice from the FTC or the DOJ.
6.4 Investment Letters. This Agreement is made in reliance upon
Purchasers' representations to the Company, which by Purchasers' execution
hereof Purchasers hereby confirms, that the SDI Stock issuable to
Purchasers hereunder is being acquired solely for investment, for
Purchasers' own accounts, not as nominees or agents, and not with a view
to the resale or distribution of any part thereof, and that Purchasers
have no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, Purchasers
further represent that Purchasers do not have any contract,
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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. Purchasers
have executed and delivered to the Companies separate Investment Letters
containing additional representations, warranties and covenants, in the
form attached as Exhibit 5.18 attached hereto, upon which the Companies
are relying in entering into and performing its obligations under this
Agreement. Purchasers, after conducting its due diligence investigation
and analysis of the Company, believe that it has received all of the
information it considers necessary or appropriate for in arriving at its
decision whether to purchase the SDI Stock described herein, and
Purchasers acknowledge that they have had an opportunity to ask questions
and receive answers from the Company regarding the Companies; provided,
however, that nothing herein shall limit, negate, or modify the Company's
representations and warranties to Purchasers referenced in this Agreement
or the Purchasers' right to rely thereon.
7. Relationship of IDI and IDI Project to Sale of Stock; Use of Proceeds.
While the Company presently intends to use all or part of the proceeds of this
sale of SDI Stock to Purchasers in connection with an aggregate equity
investment of approximately $20,000,000-$25,000,000 in the IDI Project,
Purchasers acknowledge and agree that, if IDI is not legally constituted as a
wholly-owned subsidiary of the Company, or if the IDI Project is not
consummated, for whatever reason, including (but not limited to) a lack of
adequate debt financing, or if there is a failure to consummate any of the
proposed agreements described in Section 2.12(a), 2.12(c), or 2.12(d) or if the
IDI Project does not require the amount of the proposed equity investments by
the Purchasers set forth in Section 1, the Company has the complete right,
power, and authority to use these proceeds, for any business purpose it deems
necessary or appropriate, including working capital, and there are no
restrictions placed upon the use of these proceeds by Purchasers. All decisions
concerning the deployment of these resources, including the design,
configuration, equipment or technology to be employed in its operations, or
concerning Company investments and/or capital commitments in connection with
other technologies, shall remain the exclusive province of the Company's and/or,
if IDI becomes a wholly-owned subsidiary, the IDI's Board of Directors.
Purchasers specifically acknowledge and agree that their purchase of SDI Stock
hereunder is not conditioned or dependent upon the ultimate realization or
successful operation of the IDI Project, the organization of an IDI subsidiary,
the performance or realization of any of the agreements described in Sections
2.12(a), 2.12(c), 2.12(d), or any other aspect of the IDI Project, nor shall
Purchasers have any claim for rescission or for damages in the event that the
IDI Project does not go forward, is abandoned, or is not successful, or that any
of the foregoing agreements are not consummated.
8. Conditions of the Company's Obligations at the Closing. The obligation
of the Company to perform its obligations at the Closing is subject to the
satisfaction as of the Closing of the following conditions:
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8.1 Representations and Warranties; Covenants. The representations
and warranties of the Purchasers contained in Section 6 hereof shall be
true and correct in all material respects at and as of the Closing as
though then made.
8.2 Opinion of Counsel. The Company shall have received an opinion
of counsel to Purchasers substantially in the form and substance set forth
in Exhibit 8.2 attached hereto and reasonably satisfactory to the Company.
8.3 Investment Letters. The Company shall have received from
Purchasers the Investment Letters referenced in Section 6.4 hereof.
8.4 Stockholder Approvals and Consents. All requisite Stockholder
votes, approvals, and consents prescribed by the Stockholders Agreement,
including but not limited to the approval of not less than seventy percent
(70%) of the Company's existing stockholders, excluding Purchasers, and
including waivers by existing stockholders and Warrant Holders, with
respect to the SDI Stock, of their limited preemptive rights thereunder,
shall have been secured.
8.5 Stockholders Agreement. The Company, the Purchasers, the ▇▇▇▇
Group, GECC, the Whitney Group, Heavy Metal, Keylock, Mazelina, Low Cost,
Preussag, the Subdebt Group, and the Management Group, as those persons
are identified and described in the Stockholders Agreement; shall have
entered into the S/H Amendment No. 3, in substantially the form and
substance set forth in Exhibit 2.3D attached hereto, adding Purchasers as
a party thereto but without giving Purchasers the right to designate a
representative to the Company's Board of Directors, and the S/H Amendment
No. 3 shall not have been rescinded or materially amended or modified.
8.7 Registration Agreement. The Company, the Purchasers, the ▇▇▇▇
Stockholders, GECC, Heavy Metal, the Keylock Stockholders, the Whitney
Stockholders, Preussag, the Management Stockholders, and the Warrant
Holders, as those persons are identified and described in the Registration
Agreement, shall have entered into the Registration Amendment No. 3, in
substantially the form and substance set forth in Exhibit 2.4D attached
hereto, adding Purchasers as a party thereto, and, inter alia, with
respect to the SDI Stock sold to Purchasers hereunder, granting Purchasers
certain limited rights which shall not become effective until six (6)
months after the Closing.
9. Covenants of the Company
(a) From and after the date hereof and until the provisions of this
Section 9 cease to be effective, if and when the Company constitutes IDI
as a wholly-owned subsidiary, and subject to the provisions of Section 7,
the Company shall vote its shares of stock in IDI and shall take all other
necessary action within its control so that:
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(i) The authorized number of directors on the Board of
Directors of IDI shall be established at five (5) directors;
(ii) Two (2) representatives designated by the Purchasers
shall be elected to IDI's Board of Directors and the remaining three
(3) members of the Board of Directors shall be designated by the
Company;
(iii) In the event any representative designated by the
Purchasers for any reason ceases to serve as a member of the Board
during his or her term office, the resulting vacancy on the Board
shall be filled by a representative designated by the Purchasers;
and
(iv) The Company and the Purchasers shall each be entitled to
designate an alternate to serve and function as a director in place
of a primary director with full voting and other rights of the
primary director in the event the primary director is unavailable.
(b) The Board of Directors of IDI shall act in all matters by simple
majority vote, including the hiring or retention or supervision of all
senior management.
(c) IDI shall reimburse each director of IDI for travel, food and
lodging expenses or other out-of-pocket costs incident to their attendance
at meetings of the Board of Directors of IDI or otherwise in connection
with their service as members of the Board.
(d) IDI's Board of Directors will appoint IDI's officers, who may
include one or more persons who is (and may concurrently remain) an
executive officer and/or employee of the Company or one of its affiliates.
(e) The provisions of this Section 9 shall terminate automatically
and be of no further force and effect upon the earlier of (i) the fifth
anniversary of the date of the start-up or the commencement of the
operation of the facility contiguous to the Company's mini-mill in ▇▇▇▇▇▇,
Indiana in connection with the IDI Project, or (ii) the liquidation or
dissolution of IDI.
10. 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.
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"Companies" shall mean Steel Dynamics Holdings, Inc., SDSCI, if it
continues to exist, and SDI.
"IDI" means, if it is constituted as a subsidiary corporation, an Indiana
corporation and a wholly-owned subsidiary of either the Company or SDI.
"IDI Project" means the design, and development, and construction of a
facility, partly or entirely contiguous to the Company's mini-mill in ▇▇▇▇▇▇,
Indiana, at which IDI will produce, use, and/or sell a coal-based direct reduced
iron product suitable for subsequent conversion by the Company into liquid pig
iron intended to be used as an alternative iron scrap substitute.
"Product" means the final or any of the intermediate products produced in
the Process, including DRI and liquid pig iron produced from DRI.
"Process" means the technology involved in all or any portion of a process
for producing the Product for use in steelmaking, with the raw materials of iron
ore fines and the reductant of coal, including (1) milling and pelletizing the
iron ore and coal with binder, (2) utilizing a rotary hearth furnace for
production of DRI from the pellets, (3) utilizing a submerged arc furnace or
electric arc furnace for producing liquid pig iron from the DRI, and (4)
utilizing a desulfurizing facility and related equipment to charge the liquid
iron into an electric arc furnace.
"DRI" means direct reduced iron.
"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) computer 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
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
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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.
"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.
"Restricted Securities" means the Common Stock issued hereunder and any
securities issued with respect to such Common Stock 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 (or any similar rules then in
effect), or (c) been otherwise transferred and new securities for them not
bearing the Securities Act legend set forth in Section 4.3 of this Agreement
have been delivered by the Company. Whenever any particular securities cease to
be Restricted Securities, the holder thereof will be entitled to receive from
the Company, without expense, new securities of like tenor not bearing the
Securities Act legend of the character set forth in Section 4.3 of this
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 from 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
Common Stock issued pursuant to the Subordinated Loan Agreement.
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11. Miscellaneous.
11.1 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, as amended, 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. A party to this Agreement
will be entitled to enforce its rights under any provision of this
Agreement, to recover damages by reason of any breach of any provision of
this Agreement, and to exercise all other rights granted by law or equity.
11.2 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 Purchasers 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,
as amended, or the By-Laws, as amended, 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.
11.3 Confidentiality. Purchasers will treat and hold as such all of
the Confidential Information, as that term is defined in Paragraph 10 of
the Letter of Intent between Purchasers and the Company, dated July 19-22,
1996, which terms are deemed incorporated herein by reference, and will
refrain from using any of such Confidential Information except in
connection with this Agreement. The term Confidential Information does not
include information that (i) at the time of disclosure to the Purchasers,
is generally available to the public, (ii) was available to the Purchasers
on a non-confidential basis prior to its disclosure to the Purchasers or
(iii) becomes available to the Purchasers on a non-confidential basis from
a third party, provided that such third party is not breaching an
obligation of confidentiality to the Company. If for any reason the
Closing does not take place on or before the date set forth in Section 3,
Purchasers 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
Purchasers' examinations, inspections, or due diligence work, unless such
information loses its status as Confidential Information as provided in
this Section 11.3. Purchasers 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, as well as to any prospective Affiliate,
shareholder, partner, or subsidiary of Purchasers, so long as that person
agrees in writing to be bound by the provisions thereof. In the event that
Purchasers are requested or required
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(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, Purchasers 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 11.3. If, in the absence of a protective
order or the receipt of a waiver hereunder, Purchasers, on the advice of
counsel, are compelled to disclose any Confidential Information to any
tribunal or risk liability for contempt, Purchasers 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.
11.4 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
Purchasers or on their behalf.
11.5 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 Purchasers' benefit as the
purchaser or holder of SDI Stock, are also for the benefit of and
enforceable by any subsequent Permitted Transferee of such Purchasers' 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 S/H Amendment No. 3
and the Registration Amendment No. 3.
11.6 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
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invalidating the remainder of this Agreement in such jurisdiction or any
provision hereof in any other jurisdiction.
11.7 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.
11.8 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
11.9 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.
11.10 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
Purchasers at the address indicated below:
Notices to Purchasers:
Sumitomo Corporation of America
Attention: Kei Kato
2750 USX Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sumitomo Corporation
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
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With Copy To:
▇▇▇▇ ▇. ▇▇▇▇▇
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to the Company at the address indicated below:
Notices to the Company:
Steel Dynamics Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
With a Copy to:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & McNagny
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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.
11.11 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.
11.12 Entire Agreement. Except as otherwise expressly set forth
herein, and except as provided for in Paragraphs 7(c) and 10 of the Letter
of Intent between the Company and Purchasers, dated July 19-22, 1996, to
the extent previously incorporated herein, 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.
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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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title:
-----------------------------------
SUMITOMO CORPORATION OF AMERICA
PITTSBURGH OFFICE
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
------------------------------------
& General Manager
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SUMITOMO CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director, Iron & Steel Raw Materials
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Iron & Steel Division No. 1
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23