PURCHASE AGREEMENT
This Agreement is made as of September 26, 1997, by and
among Ivaco Inc., a corporation organized under the Canada Business
Corporations Act ("IVACO"), LCL Holdings I, LLC, a Delaware limited
liability company ("Holdings I "), Midwest Holdings, Inc., a Delaware
corporation ("Purchaser"), and Birmingham Steel Corporation, a
Delaware corporation ("BSC").
WHEREAS, LCL Holdings II, LLC, a Delaware limited
liability company ("Holdings II"), owns 1,009,325 shares of common
stock, par value $0.01 per share (the "LACLEDE COMMON STOCK"), of
Laclede Steel Company, a Delaware corporation ("LACLEDE"), and 183,334
shares of Series A Preferred Stock, no par value (the "LACLEDE
PREFERRED STOCK"), of Laclede (the shares of Laclede Common Stock and
Laclede Preferred Stock owned by Holdings II are collectively referred
to as the "BSC LACLEDE SHARES");
WHEREAS, Holdings I owns 1,009,325 shares of Laclede
Common Stock and 183,333 shares of Laclede Preferred Stock (the shares
of Laclede Common Stock and Laclede Preferred Stock owned by Holdings
I are collectively referred to as the "IVACO LACLEDE SHARES" and the
Laclede Common Stock owned at any time by Ivaco, Holdings I or any
other Affiliate (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) of Ivaco (collectively,
the "Ivaco Entities") and any Laclede Common Stock issued upon
conversion of the Laclede Preferred Stock owned at any time by an
Ivaco Entity are collectively referred to as the "Ivaco Laclede Common
Shares");
WHEREAS, Ivaco owns all of the membership interests of
each of Holdings II (the "HOLDINGS II EQUITY INTERESTS") and Holdings
I ;
WHEREAS, Purchaser is a wholly-owned subsidiary of BSC;
WHEREAS, Purchaser desires to purchase, and Ivaco desires to
sell, the Holdings II Equity Interests on the terms and conditions set
forth herein;
WHEREAS, Holdings I, Ivaco, BSC and Purchaser desire to
enter into an agreement, to be specifically enforceable, pursuant to
which they agree to vote the Ivaco Laclede Common Shares as directed
by Purchaser to the extent set forth herein;
WHEREAS, Holdings I desires to enter into and grant the
rights to Purchaser contained in the irrevocable proxy attached hereto
as Exhibit A (the "PROXY"); and
WHEREAS, the Board of Directors or Manager (as the case
may be) of each of Holdings I, Ivaco, BSC and Purchaser has approved
this transaction upon the terms, conditions and provisions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and of
the respective representations and warranties hereinafter set forth
and the respective covenants and agreements contained in this
Agreement and intending to be legally bound hereby, the parties hereto
agree as follows:
1. PURCHASE AND SALE. Purchaser hereby purchases from
Ivaco, and Ivaco hereby sells to Purchaser, the Holdings II Equity
Interests for a purchase price of $14,953,288 (the "PURCHASE PRICE").
Simultaneously with the execution of this Agreement, the Purchase
Price is being paid by Purchaser to Ivaco by [cashier's check].
2. VOTING AGREEMENT. (a) Ivaco and Holdings I hereby agree
to vote (the "Voting Agreement") any and all Ivaco Laclede Common
Shares in accordance with the written directions of Purchaser on any
matter submitted to the shareholders of Laclede until such time as
Purchaser and its Affiliates beneficially own in the aggregate a
number of shares of Laclede Common Stock less than the lesser of (i)
1.3 million shares of Laclede Common Stock, (ii) the number of shares
of Laclede Common Stock beneficially owned in the aggregate by the
Ivaco Entities or (iii) if the U.S. generally accepted accounting
principles ("GAAP") governing consolidation of subsidiaries is changed
after the date hereof or if there is a revised interpretation by the
Securities and Exchange Commission or otherwise applicable to BSC of
existing U.S. GAAP governing consolidation of subsidiaries which, in
either case, reduce the threshold number of shares of Laclede Common
Stock that would require BSC to consolidate Laclede under GAAP
(collectively, a "GAAP Modification"), the maximum number of shares of
Laclede Common Stock that could be beneficially owned by the Purchaser
and BSC in the aggregate that would not result in BSC being required
to consolidate Laclede under U.S. GAAP. Notwithstanding the foregoing,
the Voting Agreement shall not apply to transactions or matters in
which BSC or any of its Affiliates has a direct or indirect interest
(other than its interest as a stockholder of Laclede generally). In
order to ensure the voting of the Ivaco Laclede Common Shares in
accordance with this Agreement, simultaneously with the execution of
this Agreement, Holdings I has executed the Proxy, granting to
Purchaser the irrevocable right to vote or execute and deliver
stockholders written consents, in respect of all of the Ivaco Laclede
Common Shares. It is understood and agreed that such proxy is intended
to be, and is, irrevocable and coupled with Purchaser's interest in
Laclede and the BSC Laclede Shares and the voting authority
contemplated to be exercised by Purchaser pursuant to this Agreement
and is thereby irrevocable, subject to the terms of this Agreement. In
the event that for any reason or under any circumstances, other than
Purchaser's breach of a material provision of this Agreement or the
expiration of the Proxy in accordance with its terms and the terms of
this Agreement, the Proxy shall be held to be invalid, or the vote by
Purchaser of the Ivaco Laclede Common Shares is challenged, then the
applicable Ivaco Entity shall take any and all actions reasonably
necessary in order for it to vote the Ivaco Laclede Common Shares, or
execute written shareholders consents in lieu thereof, as directed in
writing by Purchaser. The Voting Agreement shall not limit the ability
of any Ivaco Entity to transfer any Ivaco Laclede Common Shares, it
being understood that after any such transfer, the Voting Agreement
and the Proxy shall be valid only with respect to the remaining Ivaco
Laclede Common Shares then owned by such Ivaco Entity and its
Affiliates. Purchaser shall not have the right until September 24,
1998, to cancel the Proxy and the Voting Agreement as to any and all
of the Ivaco Laclede Common Shares (subject to the Proxy and the
Voting Agreement expiring in accordance with the terms of this
Agreement and the Proxy).
(b) For purposes of determining beneficial ownership under
this Agreement, (i) any shares of Laclede Preferred Stock beneficially
owned by any person shall be deemed to be converted into Laclede
Common Stock and (ii) beneficial ownership shall be determined in
accordance with the provisions of Rule 13d-3 promulgated under the
Exchange Act.
3. JOINT REPRESENTATIONS AND WARRANTIES OF BSC AND
PURCHASER. BSC and Purchaser hereby jointly represent and warrant to
Holdings I and Ivaco as follows:
(a) Each of BSC and Purchaser is duly organized, validly
existing and in good standing as a corporation under the laws of the
State of Delaware.
(b) Each of BSC and Purchaser has full power and authority
to execute this Agreement and to perform its obligations hereunder.
The execution, delivery and performance by BSC and Purchaser of this
Agreement have been duly authorized by all requisite action on the
part of BSC and Purchaser. This Agreement has been duly and validly
executed and delivered by BSC and Purchaser and constitutes the valid
and binding obligation of BSC and Purchaser enforceable against BSC
and Purchaser in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(c) Other than as contemplated by this Agreement, the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not (i) result in the breach of,
conflict with, constitute a default under, or result in the
termination or acceleration of (whether after the filing of notice or
lapse of time or both), any agreement, instrument of indebtedness or
other obligation to which BSC or Purchaser is a party or by which
either of them is bound or to which any of their securities or assets
is subject, or result in the creation of any lien, encumbrance or
claim upon said securities or assets, (ii) violate any provision of
BSC or Purchaser's constituting documents, or (iii) contravene or
violate any law, rule or regulation or any order, writ, judgment,
injunction or decree to which BSC or Purchaser is subject.
(d) No consent, license, approval or authorization of any
governmental body, authority, bureau or agency is required on the part
of BSC, Purchaser or any of their Affiliates in connection with the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated herein.
(e) Except for 20,000 shares of Laclede Common Stock,
neither BSC, the Purchaser nor any of their Affiliates beneficially
own any shares of Laclede Common Stock or Laclede Preferred Stock or
any other securities of Laclede.
(f) Purchaser and its Affiliates are and will remain in
compliance with all laws and regulations applicable to the subject
matter of this Agreement.
4. JOINT REPRESENTATIONS AND WARRANTIES OF HOLDINGS I AND
Ivaco. Holdings I and Ivaco hereby jointly represent and warrant to
BSC and Purchaser as follows:
(a) Ivaco is a corporation duly organized, validly
existing and in good standing under the laws of Canada. Each of
Holdings II and Holdings I is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Each of Holdings II and Holdings I has full power
and authority to own, lease or otherwise hold its properties and
assets and to carry on its business as presently conducted.
(b) Each of Holdings I and Ivaco has full power and
authority to execute this Agreement and, in the case of Holdings I,
the Proxy and to perform its respective obligations hereunder and, in
the case of Holdings I, under the Proxy. The execution, delivery and
performance by Holdings I and Ivaco of this Agreement, and, in the
case of Holdings I , the Proxy have been duly authorized by all
requisite action on the part of Holdings I and Ivaco. This Agreement
and, in the case of Holdings I, the Proxy have been duly and validly
executed and delivered by Holdings I and Ivaco and constitute the
valid and binding obligations of Holdings I and Ivaco, as applicable,
enforceable against Holdings I and Ivaco in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(c) The total outstanding membership interests (or stock)
of Holdings II consist of the Holdings II Equity Interests. Upon the
transfer of the Holdings II Equity Interests to Purchaser as
contemplated by this Agreement, Purchaser shall own full legal and
equitable title to the Holdings II Equity Interests free and clear of
any liens, adverse claims, pledges or encumbrances of any nature
whatsoever (other than any such lien, claim, pledge or encumbrance
created by Purchaser). Other than the Holding II Equity Interest owned
by IVACO, no equity rights exist, nor have any equity rights ever
existed, in Holdings II. Holdings II has no obligations, contracts or
agreements with any party.
(d) Other than as contemplated by the Proxy or this
Agreement, the execution and delivery of the Proxy and this Agreement
and the consummation of the transactions contemplated thereby and
hereby will not (i) result in the breach of, conflict with, constitute
a default under, or result in the termination or acceleration of
(whether after the filing of notice or lapse of time or both), any
agreement, instrument of indebtedness or other obligation to which
Holdings II, Holdings I or Ivaco is a party or by which any of them is
bound or to which any of their respective securities or assets is
subject, or result in the creation of any lien, encumbrance or claim
upon said securities or assets, (ii) violate any provision of Holdings
II's, Holdings I 's or Ivaco's constituting documents, or (iii)
contravene or violate any law, rule or regulation or any order, writ,
judgment, injunction or decree to which Holdings II, Holdings I or
Ivaco is subject.
(e) For United States federal income tax purposes,
Holdings II has not elected under treasury regulation 301.7701-3 to be
classified as a corporation. Holdings II has not owned any assets
other than the BSC Laclede Shares.
(f) No consent, license, approval or authorization of any
governmental body, authority, bureau or agency, is required on the
part of Ivaco, Holding I or any of their Affiliates in connection with
the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated herein.
(g) Except as disclosed in the preamble to this Agreement,
neither Ivaco nor its Affiliates beneficially own any shares of
Laclede Common Stock or Laclede Preferred Stock or any other
securities of Laclede.
(h) Ivaco and its Affiliates are and will remain in
compliance with all laws and regulations applicable to the subject
matter of this Agreement.
(i) Holdings II does not have, and has never had, any
liabilities or obligations except as imposed upon Holdings II solely
by law or as contemplated by this Agreement. Holdings II (i) owns full
legal and equitable title to the BSC Laclede Shares free and clear of
any and all liens, adverse claims, pledges or encumbrances of any kind
whatsoever and (ii) does not have, and has never had, any assets other
than the BSC Laclede Shares.
(j) The Proxy effectively transfers to Purchaser all of
the voting rights of the Ivaco Laclede Common Shares to the extent
contemplated by the terms of the Proxy.
(k) Since October 1, 1996, Ivaco has not received any
non-public information concerning Laclede which, if such information
had been made public prior to the date hereof, would reasonably be
expected to have a material adverse effect on the present market price
of the Laclede Common Stock; provided that BSC and Purchaser
acknowledge that (i) they are fully aware of the present situation
between Laclede and its labor union with respect to the contract that
is scheduled to expire on September 30, 1997 and acknowledge that a
labor strike or other work stoppage is a possibility when such
contract expires and that any such strike or work stoppage could have
a material adverse effect on Laclede, and (ii) this representation
shall have no further force or effect on and after December 31, 1998.
For purposes of this representation, the term "public" shall refer to
information that (i) is publicly available, (ii) has been made
available to securities analysts, (iii) is information that a person
sophisticated in the businesses in which Laclede operates would
reasonably be expected to know or (iv) is information in respect of
which BSC has actual knowledge.
5. COVENANTS OF IVACO AND HOLDINGS I. (a) Ivaco and
Holdings I covenant and agree with Purchaser that the Proxy will be
and remain irrevocable until the Proxy terminates in accordance with
its terms.
(b) Ivaco agrees that no Ivaco Entity shall transfer all
or any portion of its respective ownership interest in Holdings I or
the Ivaco Laclede Shares (in each instance, the "Interest") except in
accordance with the terms of this Section 5(b). Any transfer or
purported transfer of such Interest not made in accordance with this
Section shall be null and void. For this purpose, the term "transfer"
shall be deemed to refer to a transaction by which an Ivaco Entity
transfers, in whole or in part, its Interest (other than the right
solely to receive distributions) to any other person (other than any
Affiliate of Ivaco, in which case Ivaco and such Affiliate transferee
shall give Purchaser notice of such transfer within three days
thereafter and such Affiliate transferee, as a part of such transfer,
shall agree to be bound by all the terms and conditions of this
Agreement relating to the Interest). The term transfer includes a
sale, assignment, exchange or other disposition. An Ivaco Entity shall
have the right to transfer its respective Interest in accordance with
the following provisions:
(I) Until September 24, 1998, no Ivaco Entity shall
transfer all or any portion of its Interest (other than to an
Affiliate).
(II) Commencing on September 24, 1998, and through
September 23, 2002, in the event that an Ivaco Entity receives a
bonafide written offer (an "Offer") to purchase its Interest from such
third party, the Ivaco Entity shall provide Purchaser with a copy of
such offer. If the Ivaco Entity desires to sell any Ivaco Laclede
Shares on any securities market on which the Laclede Common Stock is
then traded (an "Open Market Sale"), the Ivaco Entity shall give
Purchaser written notice (an "Open Market Notice") of such intent.
Purchaser shall have three (3) business days from the receipt of such
Offer or intent to sell in an Open Market Sale to give notice to the
Ivaco Entity, (i) waiving its right to purchase the Interest and
consenting to such transfer or (ii) electing (the "Election") to
purchase the Interest of the Ivaco Entity, in the case of an Offer,
upon the terms set forth in such Offer or, in the case of an intent to
sell in an Open Market Sale, at the closing market price of Laclede
Common Stock on the day prior to the date of the Open Market Notice.
Notwithstanding anything in this provision to the contrary, Purchaser
shall not have the right to exercise the Election to the extent that,
upon acquisition of the Interest subject to the Election, Purchaser,
BSC and their Affiliates would beneficially own in the aggregate on a
fully diluted basis more than 49% of the outstanding shares of Laclede
Common Stock. A notice of an Election shall set forth the time, place
and date not less than three (3) business days and not more than five
(5) business days thereafter for the closing of such purchase. If
Purchaser does not give the Ivaco Entity notice in a timely fashion
either giving its consent to such transfer or electing to purchase the
Interest, or fails to consummate timely such purchase in accordance
with this Section, the Ivaco Entity shall have the right, in the case
of an Offer, to consummate a transfer of its Interest to such third
party named in and upon terms no less favorable than those contained
in the Offer or, in the case of an intent to sell in an Open Market
Sale, to sell the Ivaco Laclede Shares in an Open Market Sale and
Purchaser shall be deemed to have consented in writing to any such
transaction. Notwithstanding the above, to the extent Purchaser is
required to comply with the notification provisions of the
Xxxx-Xxxxx-Xxxxxx Anti-trust Improvements Act of 1976, as amended (the
"HSR Act"), in connection with the purchase of any of the Interests,
the closing of the purchase in respect of the portion of such Interest
for which such notification is required shall be postponed until the
day on which all applicable waiting periods under the HSR Act has
expired (or early termination has been granted); provided, however,
that if such waiting periods have not expired by the 90th day after
Purchaser has received written notice of an Offer or an intent to sell
in an Open Market Sale, the applicable Ivaco Entity shall thereafter
be free to sell all or any portion of the Interest subject to such
notice without restriction.
(III) After September 23, 2002, the Ivaco Entities shall
be free to sell all or any portion of their Interests without
restriction. Each of the parties hereto agree that any violation of
the rights provided in this Section 5 cannot be compensated for by
damages and Purchaser shall have the right to obtain specific
performance of such rights in any court of competent jurisdiction in
the event of any such violation thereof. For purposes of this
Agreement, a business day shall mean a day other than a Saturday,
Sunday or other day on which commercial banks in Montreal, Canada or
Birmingham, Alabama are authorized or required by law to close.
(c) As soon as practicable after the date of this
Agreement, pursuant to Section 11 of the Registration Rights Agreement
(the "Registration Rights Agreement"), dated July 30, 1996, between
Laclede, Ivaco and certain other purchasers specified therein, Ivaco
shall furnish to Laclede in writing the name and address of Holdings
II in order to assign the Registration Rights (as defined in the
Registration Rights Agreement) attaching to the Laclede Preferred
Stock owned by Holdings II. Ivaco or Holdings I shall take similar
action in the event any additional shares of Laclede Preferred Stock
are transferred to the Purchaser pursuant to Section 5(b)(II) hereof.
Purchaser understands that in order to complete any such assignment,
it needs to cause Holdings II or any other transferee of the Laclede
Preferred Stock to execute and agree to be bound by the Registration
Rights Agreement and to furnish a counterpart of such executed
Registration Rights Agreement to Laclede and to comply with the other
provisions of Section 11 of the Registration Rights Agreement.
6. COVENANTS OF PURCHASER. (a) Each of BSC and Purchaser
covenants and agrees with Ivaco that, so long as Ivaco or any of its
Affiliates beneficially own in the aggregate at least 10% of the
outstanding shares of Laclede Common Stock (with all Laclede Preferred
Stock being deemed converted into Laclede Common Stock), (i) it will
not acquire any shares of capital stock of Laclede (x) directly from
Laclede or any Affiliate thereof (other than BSC, Purchaser or any of
their subsidiaries) unless Ivaco is provided the right to purchase its
pro rata percentage of such capital stock (based upon the Laclede
Common Stock beneficially owned by Purchaser and Ivaco and their
Affiliates) upon the same terms and conditions as applies to BSC or
Purchaser's acquisition of such capital stock or (y) from any third
party (including purchases on the securities markets on which the
Laclede Common Stock is then traded) unless, at the time of such
acquisition, Holdings I (or, if Holdings I no longer owns any Ivaco
Laclede Shares, Ivaco or any Affiliate thereof then owning any Ivaco
Laclede Shares) is given the right, exercisable within three (3)
business days after written notice of such acquisition by BSC or
Purchaser is received, to sell an equal number of shares of Laclede
Common Stock to BSC or Purchaser at the same purchase price paid to
such third party (or, if such purchase price was not paid in cash, the
cash equivalent of such purchase price); it being understood that to
the extent neither Holdings I, Ivaco nor any Affiliate beneficially
owns any Laclede Common Stock, such right shall apply to any Laclede
Preferred Stock beneficially owned by them as if such shares of
Laclede Preferred Stock were converted into Laclede Common Stock and
(ii) it will not cause any directors elected to the Board of Directors
of Laclede at its designation to take any action (or omit to take any
action), and it will not exercise the Proxy or the Voting Agreement to
take any action (or omit to take any action), that would discriminate
against the interests of Ivaco as a stockholder of Laclede (it being
understood that this provision does not apply to any action (or
omission to take any action) that would have the same effect on all
stockholders generally, including BSC and Purchaser); provided,
however, the provisions of (i) above shall not be applicable on and
after September 23, 2002 and the provisions of (ii) above shall not be
applicable on and after the expiration of the Proxy and the Voting
Agreement. Each of the parties hereto agree that any violation of the
rights provided in this Section cannot be compensated for by damages
and Ivaco shall share the right to obtain specific performance of such
rights in any court of competent jurisdiction in the event of such
violation thereof.
(b) BSC and Purchaser covenants and agrees with Ivaco to
pay to Ivaco any dividends on the Laclede Preferred Stock which BSC,
Purchaser or any of their Affiliates may receive on or after the date
hereof which relate to the period from the date of original issuance
by Laclede of the Laclede Preferred Stock (I.E., July 30, 1996) until
September 26, 1997 (the "Period"). For purposes of this Section 6(b),
all dividends paid on the Laclede Preferred Stock shall be first
applied to unpaid dividends with respect to the Period.
7. (a) INDEMNIFICATION BY IVACO AND HOLDINGS I . Ivaco
will indemnify and hold harmless BSC, Purchaser and their respective
officers, directors and Affiliates from and against any and all
claims, liabilities, losses, damages, costs and expenses, including
reasonable counsel fees (collectively "Losses") arising out of or
relating to any breach by Holdings I or Ivaco of any representation,
warranty or covenant made by Holdings I or Ivaco in this Agreement.
(b) INDEMNIFICATION BY THE PURCHASER. BSC and Purchaser
will indemnify and hold harmless Holdings I , Ivaco and their
respective officers, directors, managers and Affiliates from and
against any Loss arising out of or related to any breach by BSC or
Purchaser of any representation, warranty or covenant made by BSC or
Purchaser in this Agreement.
(c) PROCEDURE FOR INDEMNIFICATION. As soon as possible
after receipt by an indemnified party hereunder of written notice of
the commencement of any action or the presentation or other assertion
of any claim with respect to which a claim for indemnification may be
made pursuant to this Section 7, such indemnified party will, if a
claim in respect thereof is to be made against an indemnified party,
notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may otherwise have to such indemnified
party except to the extent the indemnifying party is prejudiced
thereby. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party,
and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party under
this Section 7 (c) for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof; PROVIDED that all of
the indemnified parties as a group shall have the right to employ one
separate counsel if, in their reasonable judgment, a conflict of
interest between the indemnified parties and the indemnifying party
exists in respect of such claim, and in that event the reasonable fees
and expenses of such separate counsel shall be paid by the
indemnifying party.
8. MODIFICATION, ETC., This Agreement may not be waived,
modified, discharged or terminated except by a written instrument duly
executed by each party.
9. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors.
10. COOPERATION. From time to time, as and when reasonably
requested by any party hereto, the other parties shall execute and
deliver, or cause to be executed and delivered, all such documents and
instruments and shall take, or cause to be taken, all such further or
other actions as the requesting party may reasonably deem necessary or
desirable to consummate the transactions contemplated by this
Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
applicable to a contract executed and performed in such state without
giving effect to the conflicts of laws principles thereof.
12. INTERPRETATION. The descriptive headings of the
several paragraphs and sections of this Agreement are inserted for
convenient only and do not constitute a part of this Agreement. Words
in the singular include the plural and vice versa; masculine pronouns
include feminine and neuter versions thereof.
13. COUNTERPARTS. This Agreement may be executed with
counterpart signature pages or in two or more counterparts, each of
which shall be deemed an original.
14. NOTICES. Any notices, requests, waivers or other
communications required or permitted under this Agreement shall be
sufficiently given if in writing and shall be deemed to have been
given or made (i) when delivered by hand, (ii) three business days
after being deposited in the mail, by registered or certified mail,
postage prepaid, return receipt requested, (iii) one business day
after being deposited with an overnight courier service (guaranteeing
next day delivery) or (ii) when sent by telecopy (confirmation of
receipt received), in each case addressed as follows:
If to Purchaser or BSC, to: Birmingham Steel Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Xx., Esq.
Telecopy number: (000) 000-0000
If to Holdings I or Ivaco to:
c/o Ivaco, Inc.
Place Mercantile
000 Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx (Xxxxxx) Xxxxxx X0X 0X0
Attn: Guy-Xxxx Xxxxxxxxxx, Esq.
Telecopy number: (000) 000-0000
15. ENTIRE AGREEMENT. This Agreement, together with the
Proxy, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
warranties or undertakings with respect to such subject matter, other
than those set forth or referred to herein and therein. This
Agreement, together with the Proxy, supersedes all prior agreements
and understandings between the parties with respect to the subject
matter covered hereby and thereby. Nothing herein shall constitute the
parties to this Agreement partners for any purpose. No party shall
take any action (including, without limitation, any declaration for
federal, state or local income tax purposes) inconsistent with the
foregoing.
16. IVACO CONSENT TO JURISDICTION. The parties agree (i)
that any suit, proceeding or action brought by BSC or Purchaser in the
United States to enforce Ivaco's obligations under this Agreement (the
"Ivaco Obligations") will be brought only in the United States
District Court for the Northern District of Georgia, and (ii) to be
bound by any judgment entered by such court in a legal proceeding to
enforce the Ivaco Obligations, subject to all applicable rights of
appeal. Ivaco irrevocably (a) submits to the exclusive personal
jurisdiction of the United States District Court for the Northern
District of Georgia in any legal proceeding to enforce the Ivaco
Obligations; (b) waives any objection that it may now or hereafter
have to venue in any such court in any legal proceeding to enforce the
Ivaco Obligations, or that such court is an inconvenient forum to
conduct such legal proceeding; and (c) agrees to service of process in
any such legal proceeding to enforce the Ivaco Obligations, solely by
certified mail, return receipt requested, postage prepaid, to Ivaco at
its address for notice pursuant to Section 14, and in the manner
specified hereunder; provided, however, that notwithstanding the
foregoing and anything to the contrary set forth herein, BSC and
Purchaser agree that neither the negotiation, nor the execution, nor
the delivery nor the performance of this Agreement by Ivaco nor the
limited consent to jurisdiction set forth in this Section 16 shall be
interpreted as, and is not, a submission to the jurisdiction of any
federal or state court in the United States by Ivaco for any purpose
other than as expressly set forth in this Section 16.
17. PUBLICITY. Ivaco and BSC and their respective
Affiliates will consult with the other parties hereto with respect to
any initial disclosure of the matters contemplated by this Agreement.
The preceding sentence shall not apply to any disclosure required to
be made by law or the regulations of any stock exchange(s) as
reasonably determined by counsel to the party determining that such
disclosure is required, except that such party, whenever practicable,
shall be required to consult with the other parties concerning the
timing and content of such disclosure before it is made. Until
September 23, 2002, Ivaco and BSC and their respective Affiliates will
provide the other parties with copies of all press releases relating
to their holdings in Laclede, and copies of any Schedule 13D and
amendments thereto filed by such party under the Exchange Act.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
BIRMINGHAM STEEL CORPORATION LCL Holdings I, LLC
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx X. Xxxxx, Xx. Xxxxxxx Xxxxxx, its Manager
Title: Executive Vice-President
Midwest Holdings, Inc. IVACO INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxx, Xx. Name: Xxxx Xxxxxxx
Title: Executive Vice-President Title: President & CEO
EXHIBIT A
PROXY
KNOW ALL MEN BY THESE PRESENT, that LCL Holdings I, LLC, a
Delaware limited liability company (the "Grantor"), and the owner of
1,009,325 shares of common stock, par value $0.01 per share (the
"Laclede Common Stock"), of Laclede Steel Company, a Delaware
corporation ("Laclede"), and 183,333 shares of Series A Preferred
Stock, no par value (the "Laclede Preferred Stock"), of Laclede, does
hereby make, constitute and appoint Midwest Holdings, Inc., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of Birmingham
Steel Corporation, a Delaware corporation ("Birmingham"), with full
power of substitution, the true and lawful attorney and proxy of the
Grantor for and in its name, place and stead to attend all meetings of
the stockholders of Laclede, and to vote all of said 1,009,325 shares
of Laclede Common Stock, any shares of Laclede Common Stock issued to
it upon conversion of said 183,333 shares of the Laclede Preferred
Stock and any other shares of Laclede Common Stock hereinafter
acquired by Grantor (collectively, the "Shares") at any and all
meetings of the stockholders of Laclede (or any adjournments thereof),
or in any written consent solicitation or similar situation in which
the voting rights associated with the Shares may be exercised, with
respect to every matter upon which a vote is taken or consent
solicited, except with respect to transactions or matters in which
Birmingham or any of its Affiliates has a direct or indirect interest
(other than its interest as a stockholder of Laclede generally). The
term "Affiliates" shall have the meaning as set forth in the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The Grantor hereby affirms and agrees that this Proxy is given
in connection with that certain Purchase Agreement by and among the
Grantor, Ivaco Inc., a corporation organized under the laws of Canada,
("Ivaco"), Purchaser and Birmingham, dated as of September 26, 1997,
relating to the purchase by Purchaser of all of outstanding equity
interests in LCL Holdings II LLC, a Delaware limited liability
company, and that this Proxy is coupled with an interest in Laclede
and is irrevocable until its expiration as hereinafter provided, and
hereby ratifies and confirms all that the said Proxy may lawfully do
or cause to be done by virtue hereof.
The Grantor further agrees to execute and deliver at any time
any additional instruments necessary or convenient to evidence or
effectuate the voting arrangements provided for in this Proxy.
This Proxy has no fixed term (and, accordingly, for purposes of
Section 215(b) of the Delaware General Corporation Law, this Proxy
shall have a term greater than three years); PROVIDED, HOWEVER, that
this Proxy shall expire and be of no further force and effect from and
after such time as Birmingham, Purchaser and their Affiliates
beneficially own in the aggregate a number of shares of Laclede Common
Stock less than the lesser of (i) 1.3 million shares of Laclede Common
Stock, (ii) the number of shares of Laclede Common Stock beneficially
owned in the aggregate by Grantor, Ivaco and their Affiliates or (iii)
if the U.S. generally accepted accounting principles ("GAAP")
governing consolidated of subsidiaries is changed after the date
hereof or if there is a revised interpretation by the Securities and
Exchange Commission or otherwise applicable to BSC of existing U.S.
GAAP governing consolidation of subsidiaries which, in either case,
reduces the threshold number of shares of Laclede Common Stock that
would require BSC to consolidate Laclede under GAAP, the maximum
number of shares of Laclede Common Stock that could be beneficially
owned by the Purchaser, BSC and their Affiliates in the aggregate that
would not result in BSC being required to consolidate Laclede under
GAAP. Notwithstanding the foregoing, this Proxy shall not apply to
transactions or matters in which BSC or any of its Affiliates has a
direct or indirect interest (other than its interest as a stockholder
of Laclede generally). For purposes of this Proxy, (i) in computing
beneficial ownership any shares of Laclede Preferred Stock
beneficially owned by any person shall be deemed to be converted into
Laclede Common Stock and (ii) beneficial ownership shall be determined
in accordance with the provisions of Rule 13d-3 promulgated under the
Exchange Act.
This Proxy shall not limit the Grantor's ability to transfer or
sell any Shares, it being understood that after any such transfer or
sale, this Proxy shall be valid only with respect to the remaining
Shares then owned by the Grantor.
IN WITNESS WHEREOF, the Grantor has caused this Proxy to be
executed by its duly authorized representative this 26th day of
September, 1997.
LCL Holdings I, LLC
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, its Manager
