Exhibit 10.8a
[Execution
Copy]
SHAREHOLDERS
AGREEMENT
This Shareholders
Agreement (this “Agreement” ) is made as of
this 9 th day of June, 2008 by and among Steel
Dynamics, Inc., an Indiana corporation (together with any
successor thereto, the “SDI” ) and the
shareholders of SDI listed on the signature pages hereto (the
“Shareholders”
) under the following circumstances:
A.
Carolina Investment Company, LLC, an Indiana limited liability
company, as the buyer ( “Buyer” ), ASAP Investors,
LLC, a North Carolina limited liability company ( “ASAP Investors” ) and CRG
Investors, LLC, a South Carolina limited liability company (
“CRG Investors”
), as sellers ( “Sellers” ), the
Shareholders, as the direct or indirect owners of all of the equity
interests of the Sellers and Recycle South, LLC, a Delaware limited
liability company (the “Company” ) are parties to
a Membership Purchase Agreement dated May 8, 2008 (the
“Purchase
Agreement” ) pursuant to which the Buyer purchased
all the Sellers’ Membership Interest (as that term is defined
in the Purchase Agreement) in the Company and SDI issued shares of
its Common Stock (as defined below) to the Shareholders; and
B.
Buyer is a wholly owned subsidiary of OmniSource Corporation, an
Indiana corporation, which, in turn, is a wholly owned subsidiary
of SDI; and
C.
This Agreement is being executed and delivered in connection with
the closing of the transactions contemplated by the Purchase
Agreement.
NOW THEREFORE , in
consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
1.1
Construction of Terms . As used herein, the
masculine, feminine or neuter gender, and the singular or plural
number, shall be deemed to be or to include the other genders or
numbers, as the case may be, whenever the context so indicates or
requires.
1.2
Defined Terms . In addition to the words
elsewhere defined in this Agreement, the following capitalized
terms shall have the following meanings:
“Affiliate”
of any Person means a Person that, directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under
common control with the first mentioned Person. A Person
shall be deemed to control another Person if such first Person
possesses directly or indirectly the power to direct, or cause the
direction of, the management and policies of the second Person,
whether through the ownership of voting securities, by contract or
otherwise.
“Broker’s
Transaction” means a “broker’s
transaction” as defined in Rule 144 promulgated under
the Securities Act.
“Closing
Date” means the closing date of the
transactions contemplated by the Purchase Agreement.
“Commission”
means the United States Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act
and the Exchange Act.
“Common
Stock” means SDI’s Common Stock, par
value $0.005 per share, and any other securities into which or for
which such shares may be converted or exchanged pursuant to a plan
of recapitalization, reorganization, merger, sale of assets or
otherwise.
“Exchange
Act” means the Securities Exchange Act of
1934, as amended from time to time, and the rules and
regulations of the Commission thereunder.
“Hedging
Transaction” means any short sale (whether or
not against the box) or purchase, sale or grant of any right
(including without limitation, any put or call option) with respect
to any security (other than a broad-based market basket or index)
that includes, relates to or derives any significant part of its
value from SDI’s Common Stock.
“Person”
means any individual, corporation, association, partnership,
limited liability company, joint venture, estate, trust or
unincorporated organization or any government or any agency or
political subdivision thereof.
“Registrable
Securities” means the Shares held by the
Shareholders and any other securities issued or issuable with
respect to any such shares by way of a stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization;
provided , however , that notwithstanding anything to
the contrary contained herein, “Registrable Securities”
shall not at any time include any shares of Common Stock held by a
Shareholder when all shares of Common Stock held by such
Shareholder may be sold in a three-month period without restriction
pursuant to Rule 144 promulgated under the Securities Act.
“Securities
Act” means the Securities Act of 1933, as
amended from time to time, and the rules and regulations
promulgated thereunder.
“Shares”
means the shares of Common Stock issued by SDI to the Shareholders
at the closing of the transactions contemplated by the Purchase
Agreement, including shares issued in the name of the Sellers and
held pursuant to the escrow agreement executed and delivered on the
Closing Date.
“Transfer”
means any direct or indirect transfer, donation, sale, assignment,
pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any portion of a security,
of any rights or interests therein or the disposition of the
economic interest therein, whether by merger, operation of law or
otherwise, including pursuant to any Hedging Transaction.
“Transferred”
means the accomplishment of a Transfer, and “Transferee” means the
recipient of a Transfer.
SECTION 2
RESTRICTIONS ON TRANSFER
2.1
Restrictions on Transfer . Each Shareholder
agrees that he, she or it will not Transfer all or any portion of
the Shares, except in connection with, and strictly in compliance
with the conditions of, any of the following:
2
(a)
Transfers of Unrestricted Shares as described in
Section 2.2;
(b)
Transfers by a Shareholder to (i) his or her spouse, children,
grandchildren, parents, siblings or siblings’ children (each,
a “Family
Member” ), (ii) a trust, corporation, limited
partnership, limited liability company or other entity organized
solely for the benefit of such Shareholder and/or any Family
Member, or (iii) a tax-exempt foundation established and
funded solely by the Shareholders and their Family Members or any
of them; provided , that (x) the Transfer is exempt
from the registration requirements of the Securities Act and
(y) unless the Shares relating to such Transfer are
Unrestricted Shares (as defined below) the Transferee shall have
executed a Joinder Agreement substantially in the form of
Exhibit A attached hereto; or
(c)
Transfers upon the death of a Shareholder to his or her heirs,
executors or administrators or to a trust under his or her will or
Transfers between such Shareholder and his or her guardian or
conservator, provided that (x) the Transfer is exempt
from the registration requirements of the Securities Act and
(y) unless the Shares relating to such Transfer are
Unrestricted Shares, the Transferee shall have executed a Joinder
Agreement substantially in the form of Exhibit A
attached hereto.
Any permitted
Transferee described in the preceding clauses (b) or
(c) shall be referred to herein as a “Permitted Transferee.”
Notwithstanding anything to the contrary in this Agreement
or any failure to execute a Joinder Agreement as contemplated
hereby, Permitted Transferees shall take any Shares so Transferred
subject to all provisions of this Agreement as if such Shares were
still held by the transferor, whether or not they so agree with the
transferor and/or SDI.
2.2
Release of Restrictions . Notwithstanding
Section 2.1, a Shareholder may Transfer all of the Shares
issued to such Shareholder on the Closing Date at any time on or
after the date that is six (6) months following the Closing
Date. Any Shares that may be Transferred by a Shareholder
free of the restrictions set forth in this Section 2 shall be
referred to as the “Unrestricted Shares.”
2.3
Prohibited Transfers . If any Transfer of
Shares by a Shareholder is made or attempted contrary to the
provisions of this Agreement, such purported Transfer shall be
void ab initio . SDI shall have, in
addition to any other legal or equitable remedies which it may
have, the right to enforce the provisions of this Section 2 by
actions for specific performance (to the extent permitted by
law). SDI shall have the right to refuse to recognize any
Transferee as one of its shareholders for any purpose.
SECTION 3
SHELF REGISTRATION
3.1
Shelf Registration .
(a)
By the earlier of (i) the date that is one hundred eighty
(180) days after the Closing Date or (ii) December 31,
2008, SDI shall file a shelf registration statement pursuant to
Rule 415 under the Securities Act (the “Shelf Registration
Statement” ), which Shelf Registration Statement
shall provide for resales of all Registrable Securities held by the
Shareholders. SDI represents and warrants to the Shareholders
that SDI is a Well-Known Seasoned Issuer as such term is defined in
the regulations promulgated under the Securities Act
3
qualified to file
automatically-effective shelf registration statements under the
Securities Act and rules and regulations promulgated
thereunder and that the Shelf Registration Statement will be
automatically effective when filed with the Commission.
(b)
SDI shall use its commercially reasonable efforts to maintain its
status as a Well-Known Seasoned Issuer qualified to file
automaticall
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