EXHIBIT 10.2
EXECUTION COPY
RICHMOND INVESTMENT HOLDINGS LIMITED
October 24, 2004
International Steel Group Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Re: LNM Transaction
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger (the
"Merger Agreement"), entered into among Ispat International N.V. ("Parent"), a
company organized under the laws of The Netherlands, Park Acquisition Corp.
("Merger Sub"), a Delaware corporation and a wholly-owned subsidiary of Parent,
and International Steel Group Inc. (the "Company"), a Delaware corporation.
Reference is also made to the Acquisition Agreement (the "Richmond Agreement")
between Parent and Richmond Investment Holdings Limited ("Richmond"), a company
organized under the laws of the British Virgin Islands, for the purchase by
Parent of all of the issued and outstanding capital stock of LNM Holdings N.V.
("LNM"), a company organized under the laws of The Netherlands Antilles (the
"LNM Transaction"). All capitalized terms not defined herein will have the
meanings ascribed to such terms in the Merger Agreement. Each of Richmond and
the Company are referred to herein as a "party".
1. Richmond Agreement. Richmond hereby represents and warrants
to the Company that, except as disclosed in the Parent Disclosure Schedule, a
Parent SEC Report filed prior to the date hereof, the Richmond Agreement, the
LNM Disclosed Information or the Parent Prospectus:
(a) Richmond is the sole stockholder of LNM and has entered
into the Richmond Agreement; (b) the Richmond Agreement is a valid and binding
agreement of Richmond, and is not in default by its terms nor has it been
canceled by us; (c) the representations and warranties of Richmond contained in
the Richmond Agreement are true and correct in all material respects; (d)
Richmond is not in breach or violation of, or default under, the Richmond
Agreement in any material respect; (e) to Richmond's knowledge, Parent is not in
breach or violation of, or default under, the Richmond Agreement; (f) Richmond
has not received any claim of default under such agreement; (g) neither the
execution of the Richmond Agreement or the Merger Agreement nor the consummation
of any transactions contemplated thereby shall constitute a default under, give
rise to cancellation rights under, or otherwise adversely affect the rights of
Parent for indemnification under the Richmond Agreement; (h) the execution and
delivery of this letter
agreement by Richmond have been duly authorized by all necessary corporate,
partnership or other similar action; (i) this letter agreement has been duly
executed and delivered by the Richmond and constitutes the valid and binding
obligation of the Richmond enforceable against the Xxxxxxx Seller in accordance
with its terms; and (j) the execution and delivery of this agreement by the
Richmond does not, and the performance of this letter agreement by the Richmond
will not, conflict with or violate the certificate of incorporation, by-laws or
similar organizational documents of the Richmond.
2. Dividends. Except as permitted or otherwise contemplated by
the Richmond Agreement, from the date of this letter agreement through the
earlier of (i) the termination of the Merger Agreement and (ii) the closing date
of the LNM Transaction, Richmond will cause LNM not to declare, set aside, make
or pay any dividend or other distribution payable in cash, stock, property or
otherwise, with respect to any of LNM capital stock or repurchase or otherwise
acquire, directly or indirectly, any of LNM's capital stock or enter into any
binding agreement to do any of the foregoing.
3. Access to Information. Except as prohibited by any
confidentiality agreement or similar agreement or arrangement to which Richmond
or the Company or any of their respective subsidiaries is a party or in
accordance with applicable Law, from the date of this Agreement until the
earlier of (A) the termination of the Merger Agreement and (B) the Effective
Time, Richmond shall cause LNM and it subsidiaries to: (i) provide to the
Company and the Company's Representatives access at reasonable times upon prior
notice to the officers, employees, agents, properties, offices and other
facilities of LNM and its subsidiaries and to the books and records thereof and
(ii) furnish promptly to the Company such information concerning the business,
properties, contracts, assets, liabilities, personnel and other aspects of LNM
and its subsidiaries as is reasonably necessary in order for the Company to
perform due diligence review with respect to representations, warranties and
covenants provided to the Company pursuant to the Merger Agreement.
4. Non-Survival of Representations, Warranties. The
representations and warranties in this letter agreement shall terminate at the
Effective Time.
5. Parties in Interest. This letter agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
letter agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this letter agreement.
6. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this letter agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this letter agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
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7. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this letter
agreement were not performed in accordance with the terms hereof, in addition to
any other remedy at law or equity.
8. Entire Agreement; Assignment. This letter agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof. This letter agreement shall not be assigned (whether pursuant to a
merger, by operation of law or otherwise).
9. Governing Law. This letter agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed in that State (other than those
provisions set forth herein that are required to be governed by the DGCL). All
actions and proceedings arising out of or relating to this letter agreement
shall be heard and determined exclusively in any New York state or federal court
sitting in the Borough of Manhattan of The City of New York. The parties hereto
hereby (a) submit to the exclusive jurisdiction of any state or federal court
sitting in the Borough of Manhattan of The City of New York for the purpose of
any Action arising out of or relating to this letter agreement brought by any
party hereto and (b) irrevocably waive, and agree not to assert by way of
motion, defense, or otherwise, in any such Action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or
that this letter agreement or the transactions contemplated hereby may not be
enforced in or by any of the above-named courts.
10. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this letter agreement.
11. Amendment. This letter agreement may not be amended or
modified except (a) by an instrument in writing signed by each of the parties
hereto or (b) by a waiver in accordance with paragraph 11 hereof.
11. Extension; Waiver. Any party hereto may (a) extend the
time for the performance of any obligation or other act of any other parties
hereto, (b) waive any inaccuracy in the representations and warranties of any
other party contained herein or in any document delivered pursuant hereto and
(c) waive compliance with any agreement of any other party or any condition to
its own obligations contained herein. Any such extension or waiver shall be
valid if set forth in an instrument in writing signed by the party or parties to
be bound thereby.
[SIGNATURE PAGE TO FOLLOW]
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Very truly yours,
RICHMOND INVESTMENT HOLDINGS LIMITED
BY: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Director
ACCEPTED AND AGREED:
INTERNATIONAL STEEL GROUP INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President & Chief Executive Officer
