Exhibit 10.04
MANAGEMENT ADVISORY AND
TECHNICAL ASSISTANCE AGREEMENT
BETWEEN
STEEL DYNAMICS, INC.
AND
NSM MANAGEMENT COMPANY
MANAGEMENT ADVISORY AND
TECHNICAL ASSISTANCE AGREEMENT
THIS MANAGEMENT ADVISORY AND TECHNICAL ASSISTANCE AGREEMENT is made
and entered into as of the ____ day of March, 1998, by and between STEEL
DYNAMICS, INC., a corporation duly organized and existing under the laws of
Indiana, USA, with its principal office at Butler, Indiana,
and
NSM MANAGEMENT CO., a Delaware limited liability company with its principal
office in Singapore, Republic of Singapore.
WITNESSETH THAT,
WHEREAS, NSM is the owner and developer of a new mill, which
combines a minimal steel manufacturing plant with contiguous DRI and finishing
facilities for the production of the Products;
WHEREAS, NSM and Management Co. have entered into a Management
Agreement, pursuant to which Management Co. is to have control over the
operation and management of NSM, as more fully set forth therein;
WHEREAS, SDI has designed, built, started-up, and is currently
operating a thin-slab flat-rolled mini-mill in Butler, Indiana, as well as a
cold mill facility and a DRI facility on or contiguous to the same site, and has
accumulated know-how and experience particular to its U.S. Midwestern operations
in connection therewith;
WHEREAS, Management Co. believes that it can better discharge its
duties and obligations to NSM under the Management Agreement if it can obtain
the benefit of SDI's experience and operational and management techniques, so
that it could adapt such experience and techniques to NSM's particular needs, as
Management Co. deems appropriate, and, accordingly, has asked SDI to provide it
with technical and operational consulting services, under the terms and
conditions described herein;
NOW, THEREFORE, in consideration Of the premises and covenants
hereinafter contained and to be faithfully performed, SDI and Management Co.
hereby agree as follows:
ARTICLE I
DEFINITIONS
Defined terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Definitions and Rules of Usage
(March 12, 1998), which is incorporated herein by reference as though fully set
forth herein, and the related Rules of Usage shall be applicable hereto.
ARTICLE II
AGREEMENT REGARDING MANAGEMENT ADVICE
AND CONSULTATION BY SDI
2.1 Subject to the provisions of Section 2.2, SDI hereby agrees to:
(a) provide Management Co. with advice and counsel regarding SDI's
management techniques, methodologies, and culture, including employee
relations and incentivization;
(b) advise Management Co., to the best of its knowledge, experience,
and ability, in relation to all problems, studies, evaluations, questions,
issues, inquiries, investigations and matters relating to the actual
operation of the Mill, and to the manufacture of the Products, which
Management Co. may from time to time refer to SDI for its opinion and
advice during the term of this Agreement;
(c) provide Management Co. with reasonable assistance in relation to
the business and practical applications of SDI Technology; and
(d) Upon Management Co.'s request from time to time, provide
Management Co. with such additional assistance as it is entitled to make
available hereunder, as may be reasonably necessary or desirable for the
effective performance of its duties and obligations hereunder;
2.2 It is understood that, in performing its services hereunder, SDI
will:
(a) in general, periodically draw upon its own personnel who are
from time to time available for short-term projects or assignments, and
who are professionally qualified to render advice in relation to the
subject matter of the consultation; and
(b) primarily provide training-type advice and consultation to
Management Co., and, subject to Management Co.'s control, supervision, and
direction, to NSM's
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supervisory and managerial personnel, as well as, during start-up of the
Mill and from time to time thereafter on an incidental basis regarding the
Mill, to a reasonable number of NSM operating personnel in connection with
the foregoing matters, such that the persons so trained will be able to
then train their own people.
2.3 The parties agree that SDI has undertaken no independent study
or analysis of NSM's proposed operations, or of its Mill, its proposed Products,
its technology and equipment, its management structure, the nature of its work
force, its labor relations, the sources and nature of its raw materials, its
markets, its transportation system, or the impact of its Thai culture, legal
system, or tax laws upon its proposed business or upon Mill operations. SDI does
not know whether, and has made no representations to NSM, express or implied, to
the effect that SDI Technology or SDI's techniques and culture are appropriate
for or best suited to NSM's needs. SDI's undertaking herein, is solely to make
available to Management Co., and, through Management Co. to NSM, its own
understandings, experience, and know-how, based upon its own operations, for
Management Co.'s and/or NSM's use, rejection, modification, or adaptation as
Management Co. and/or NSM deems appropriate. The parties likewise agree that SDI
shall have no ongoing monitoring or oversight functions over NSM's Mill
operations.
2.4 The parties further acknowledge and agree that, with regard to
the discharge of SDI's duties and obligations hereunder, SDI has been granted no
power or authority, does not intend to exercise any such power or authority, and
is undertaking no obligations to directly or indirectly manage, control, or
supervise any of NSM's management or operating personnel or any of NSM's
policies, practices, or procedures, to be responsible for achieving
profitability of NSM's Mill or to profitably operate at any particular level, or
to be able to solve any and all problems that may arise or that may be referred
to SDI by Management Co. from time to time for consultation and advice.
Management Co. shall in all instances have total discretion on whether and, if
so, how to implement any SDI advice that it may receive, and shall derive all of
its authority and take all of its directives from, and shall be solely
answerable to, NSM.
ARTICLE III
Additional Services
3.1 Reciprocal Right of Access to Technical Information
3.1.1 Upon the written request of the Requesting Party, made from
time to time during the term of this Agreement, and subject to the
execution by the Requesting Party of commercially reasonable
confidentiality and non-disclosure agreements, as contemplated by Article
V, with reasonable safeguards to insure that the Providing Party's
Technology is neither disclosed to nor used for the benefit of persons who
are not themselves authorized to receive such disclosure or to use such
Technology, nor used for purposes other than as specifically contemplated
hereunder, the Providing Party, on a non-exclusive basis, during
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reasonable business hours, and when such Technical Assistance will not
unreasonably disrupt the Providing Party's business or production
activities, shall provide the Requesting Party, for use either by NSM at
its Mill, or at any of its other mill sites in Thailand, Malaysia, or the
Philippines, or by SDI at its plants in the U.S., Canada, or Mexico, as
the case may be, access to such Technical Information, including the
right, subject to the Providing Party's judgment regarding the
identification of and the number of persons necessary to provide the
Technical Information (i) to interview certain operating, engineering, or
administrative personnel, (ii) subject to reasonable safeguards and
limitations, to observe processes, procedures or applications, (iii) to
videotape, photograph, draw, diagram, or record such processes, procedures
or applications, (iv) to make photocopies of any pertinent non-copyrighted
materials with respect to such Technical Information, and (v) to copy
digitally stored data, if not copyrighted, relating to the specific
request.
Nothing herein however, or in Sections 2.1 or 3.2, shall be
construed to require SDI to provide NSM with management advice, Technical
Information or Technical Assistance with respect to any person who is not
an employee of the Mill, or at any facility other than the Mill, or to
require NSM to provide SDI with Technical Assistance with respect to any
person who is not an employee of SDI's Butler, Indiana mill, or at any
facility other than its Butler, Indiana facility.
3.1.2 The Providing Party shall be under no continuing obligation to
the Requesting Party, but shall make a good faith effort to update or
revise any Technical Information that has previously been made available
to the Requesting Party.
3.1.3 A Providing Party makes no representation or warranty for any
purpose with respect to Technical Information furnished hereunder, except
that the Providing Party shall use its best efforts to verify that such
Technical Information is the same information and data as is used by it at
the time of access.
3.1.4 The Requesting Party shall reimburse the Providing Party for
all reasonable out-of-pocket expenses, including economy class air
transportation, and reasonable lodging and food costs, incurred by the
Providing Party in complying with a request for Technical Information
under this Agreement. The Requesting Party shall not be responsible for
paying any salaries, benefits or per them charges for employees of the
Providing Party involved in providing the Technical Information.
3.2 Reciprocal Right to Technical Assistance
3.2.1 In order to assist the Requesting Party in understanding
Technical Information furnished under Section 3.1 and to assist the
Requesting Party in the manufacture of the Products to which such
Technical Information relates, and subject to the execution by the
Requesting Party of commercially reasonable confidentiality and
non-
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disclosure agreements, as contemplated by Article V, with reasonable
safeguards to insure that the Providing Party's Technology is neither
disclosed to nor used for the benefit of persons who are not themselves
authorized to receive such disclosure or to use such Technology, nor used
for purposes other than as specifically contemplated hereunder, the
Providing Party shall, upon receipt of a request of the Requesting Party
made from time to time during the term of this Agreement, provide
reasonable Technical Assistance to personnel employed and specifically
designated by the Requesting Party, subject to the availability of
qualified personnel within the employ of the Providing Party.
3.2.2 In the event the Requesting Party asks the Providing Party to
make its personnel available to provide Technical Assistance at the
Requesting Party's facilities either at the Mill or at SDI's Butler,
Indiana facility, as the case may be, the following terms and conditions
shall apply:
(a) The Parties shall agree upon a mutually acceptable time
schedule for the provision of such services. In the case of an
urgent or emergency situation, the Requesting Party shall so
indicate and shall submit its request for Technical Assistance to
the Providing Party as soon as possible. While the Providing Party
is expected to attempt in good faith to accommodate the Requesting
Party's schedule, the Providing Party shall not be required to
disrupt its operations or incur additional expense in order to do
so.
(b) It is understood that, with respect to the level of the
Providing Party's involvement at the Requesting Party's facility
(including the number of staff, the nature of the expertise
required, and the frequency of perceived need), the main purpose is
for the Providing Party to provide the Requesting Party with a
reasonable amount of initial on-site or other training, primarily
directed to the Requesting Party's supervisory and managerial
personnel (with a focus on "training the trainer"), but that
ultimately the Requesting Party is expected to be able to provide
its own ongoing training and support for its own staff and not to
depend upon the Providing Party on a continuous basis.
(c) The Requesting Party shall receive and make necessary
arrangements for the Providing Party's personnel being sent to the
Requesting Party's facilities and shall reimburse the Providing
Party for all reasonable business class air travel and other living
expenses incurred by such personnel. The Requesting Party shall not
be responsible for salaries, benefits or per them expenses of the
Providing Party's personnel providing Technical Assistance. The
Requesting Party shall bear all of its own expenses related to such
Technical Assistance.
(d) The personnel of the Providing Party sent to the
Requesting Party's facility to provide Technical Assistance
hereunder, to provide Technical
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Information pursuant to Section 3.1, or to provide management advice
pursuant to Section 2.1, shall not be considered for any purpose to
be employees, agents or representatives of the Requesting Party, nor
shall they assume any responsibility for the Requesting Party's
manufacture of products. Such personnel shall not be placed on the
Requesting Party's payroll and the Providing Party shall be required
to insure that such personnel are covered under applicable Workmen's
Compensation or comparable laws, including health and accident
insurance policies, for any injury that may occur to such personnel.
3.2.3 In the event the Requesting Party asks that the Providing
Party accept the Requesting Party's personnel at the facilities of the
Providing Party for the purpose of receiving Technical Assistance, such
assistance shall be made available under the following conditions:
(a) The Parties shall agree upon a mutually acceptable time
schedule for the provision of such services. In the case of an
urgent or emergency situation, the Requesting Party shall so
indicate and shall submit its request for Technical Assistance to
the Providing Party as soon as possible. While the Providing Party
is expected to attempt in good faith to accommodate the Requesting
Party's schedule, the Providing Party shall not be required to
disrupt its operations or incur additional expense in order to do
so.
(b) The Requesting Party shall bear all expenses (including
travel and living expenses as previously described) incurred by the
Requesting Party's personnel assigned to receive Technical
Assistance under this Article, plus all other reasonable
out-of-pocket training costs incurred by the Providing Party. The
Requesting Party shall not be responsible for salaries, benefits or
per diem expenses of the Providing Party's personnel providing
Technical Assistance.
(c) Technical Assistance shall be provided in such manner as
the Providing Party may allow (a) in accordance with safety
requirements, (b) with due consideration to prevention of
unreasonable disturbance of its manufacturing operations or
production scheduling, and (c) under the guidance of the Providing
Party's personnel.
(d) The personnel of the Requesting Party sent to the
Providing Party's facility to receive Technical Assistance shall not
be considered for any purpose to be employees, agents or
representatives of the Providing Party, nor shall they assume any
responsibility for the Providing Party's manufacture of products.
Such personnel shall not be placed on the Providing Party's payroll,
and the Requesting Party shall be required to insure that such
personnel are covered under its own applicable Workmen's
Compensation or comparable laws, including health and accident
insurance policies, for any injury that may occur to such personnel.
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3.2.4 The Providing Party represents and warrants that its personnel
assigned to provide Technical Assistance to the Requesting Party shall be
reasonably qualified to provide such assistance, in accordance with good
professional practice, and shall use their best efforts for said purpose,
but no other warranty with respect to Technical Assistance is or shall be
deemed to be given to the Requesting Party by the Providing Party.
3.3 Upon the request of Management Co., SDI will permit a reasonable
number of representatives of Management Co. and/or of NSM, who have executed
confidentiality agreements (in form and substance mutually agreeable to the
parties), with safeguards to insure that SDI Technology, or, if applicable, IDI
Technology, is neither disclosed to nor used for the benefit of persons who are
not themselves authorized to receive such disclosures or to use such technology,
nor used for purposes other than as specifically contemplated hereunder, to
visit such of SDI's plants or operations, in the United States or elsewhere, as
SDI deems appropriate, at such times and for such reasonable periods during the
term of this Agreement as may be mutually agreed upon, in order for such
representatives to attend training sessions, to learn how to train their own
people, and to study SDI's and/or, if applicable, IDI's manufacturing processes
and management techniques and other technical information relating to the
Products and to the operation of such plants.
3.4 SDI will fumish a mutually agreed upon number of its, or, if
applicable, IDI's experienced and qualified staff, on short-term assignments to
the Mill, at such times and for such periods as may be mutually agreed upon in
order to render management advice, provide Technical Information, or to render
Technical Assistance within the scope of this Agreement. SDI shall have the
right to assign, reassign, recall, rotate or change any of its staff, at
reasonable intervals, it being understood that the parties' primary objective
hereunder is to train Management Co.'s and/or NSM's people to be trainers, so
that they will be able to train NSM's actual operating personnel on an ongoing
basis. Nothing herein shall be interpreted to mean that SDI is required to
maintain, nor does SDI intend to maintain, any regular staff presence or any
other permanent or semi-permanent presence or establishment at NSM's plant in
Thailand, or elsewhere, nor any presence for Thai tax purposes.
Management Co. shall, at no cost to SDI or its Subsidiaries, cause
NSM to provide said trainers and technical experts with (i) all necessary office
space and equipment, communication facilities such as telex, telephone or
facsimile between Thailand and the United States, and any similar support, and
(ii) necessary facilities for the conduct of such technical experts.
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ARTICLE IV
PAYMENTS BY Management Co. OR NSM
4.1 In consideration of the services to be performed by SDI and/or,
if applicable, by IDI hereunder, Management Co. shall pay or shall cause NSM to
make the following payments to SDI:
(a) An annual fee of Two Million Dollars (US $2,000,000) per year,
payable in advance, the first $2,000,000 of which shall be paid
concurrently with the Closing Date, and succeeding annual payments of
$2,000,000 each payable on each anniversary of the Closing Date, so long
as this Agreement remains in effect; provided that in no event shall
aggregate fees be payable pursuant to this Section 4.1(a) in excess of
Twenty Million Dollars (US $20,000,000) over the ten year term of this
Agreement. In the event that this Agreement is terminated pursuant to the
provisions of Article VIII and such termination occurs subsequent to the
payment of the annual fee hereunder on the anniversary date, any uneamed
portion of such fee shall be refunded to NSM (pro rated by the number of
days remaining in the year of termination).
(b) A payment of One Million Three Hundred Thousand Dollars (U.S.
$1,300,000.00), payable upon the start-up of the Finishing Facilities, but
no later than March 12, 1999.
(c) Management Co. shall cause NSM to pay for all costs and expenses
for its representatives, including, but not limited to, economy air
travel, lodging and meal expenses, incurred in connection with each
visitation to an SDI or, if applicable, an IDI plant, as well as in
connection with any of the other training contemplated herein. SDI shall
not be responsible for any property damage or bodily injury which any
representatives of Management Co. and/or NSM may sustain during their stay
in the United States, or at such other locations designated by SDI, unless
such damage or injury will have been caused by gross negligence or willful
misconduct of SDI or its personnel. SDI shall assist Management Co. in
acquiring accommodations for the said representatives, but with no
obligation to bear expense for such accommodation.
(d) In connection with the services to be rendered to Management Co.
and/or to NSM in Thailand, Management Co. shall cause NSM to pay to or
reimburse SDI, with respect to each of said trainers and technical
experts, the expenses of air travel from the United States to Bangkok
and/or to NSM's plant in Thailand, and return, at economy class rates,
together with all out of pocket expenses for food, transportation, and
lodging during each such staff person's stay in Thailand.
(e) All amounts payable under Sections 4.1(c) or (d), shall be due
and payable by NSM to SDI within thirty (30) days after the transmittal by
SDI to Management Co. of
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invoices with respect thereto. Fees payable pursuant to Section 4.1(a) or
(b) shall be payable in full in advance on or before the date indicated,
and shall be in default if not fully paid within fifteen (15) days of the
due date. Any payment not made when due shall accrue interest at an annual
interest rate of ten percent (10%) from the date such payment is due until
the date such payment is made.
4.2 Except as otherwise agreed upon, all financial obligations
hereunder are Dollar obligations, and Management Co. shall cause all payments
under this Agreement to be made by NSM in that currency via electronic transfer
to SDI's account as specified by SDI, any bank charges inside Thailand to be
borne by NSM.
4.3 Subject only to the following paragraph, SDI shall be
responsible for all U.S. taxes and charges on any payments due and payable under
this Agreement.
If NSM shall be required under the laws of Thailand to deduct from
any payment made to SDI hereunder any income tax which may be levied against
SDI, then Management Co. shall cause NSM to deduct such amounts from the
payments due to SDI hereunder, and Management Co. shall cause NSM to remit to
the relevant tax authorities such income tax; provided, however, that NSM and
Management Co. shall promptly fumish to SDI appropriate tax receipts or other
documentary evidence issued by the competent tax authorities relating to such
payment made by NSM, and showing payment in the name of SDI, so that SDI may
obtain a tax credit in the United States. Recovery of such tax credit shall be
the sole risk and responsibility of SDI. Management Co. agrees that any value
added tax in Thailand on any payments hereunder shall be borne by NSM.
ARTICLE V
CONFIDENTIALITY
5.1 All Technical Information, technical trade secrets, know-how,
proprietary information, and data furnished or made available by either Party
hereunder (hereinafter "Confidential Information"), will be deemed to be and
will be received by the Requesting Party as confidential and proprietary, so
long as it is identified as such when furnished, and such Confidential
Information is for the Requesting Party's own use as limited herein and is to be
kept confidential, in accordance with the standards set forth in the next
paragraph, by the Requesting Party during and following the expiration or
termination of this Agreement. This Article shall survive expiration or
termination of this Agreement.
Confidential Information shall not be made available, given, sold or
disclosed by the Requesting Party to any other person without the prior written
consent of the Providing Party. Each Party agrees to use its best efforts to
maintain the confidentiality of the Confidential Information disclosed to it and
each shall use no less than the same safeguards as it uses to protect
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its own Confidential Information of a similar nature. A Requesting Party shall
disclose Confidential Information received from the Providing Party only to the
Requesting Party's officers, agents, employees, consultants and advisors whose
duties reasonably require familiarity with such information, provided that the
Requesting Party shall first obtain from such persons legally enforceable
undertakings, in form and substance satisfactory to the Providing Party, not to
personally use Confidential Information, or knowledge derived therefrom, not to
disclose it to or for the benefit of any third party and containing such other
protections as the Providing Party shall reasonably request. Copies of all such
undertakings shall be delivered to the Providing Party, with evidence of its
proper adoption and legality. Except as otherwise agreed by the Parties, the
Requesting Party shall be required at its own expense to take such legal actions
as may be reasonably necessary to enforce such undertakings.
5.2 The confidentiality obligation of the Requesting Party under
Section 3.1 above shall not apply to Confidential Information which:
5.2.1 is or becomes publicly known through no wrongful act of the
Requesting Party or its employees;
5.2.2 is received by the Requesting Party without restriction from a
third party without breach of any obligation of nondisclosure;
5.2.3 is or has been independently developed by the Requesting
Party;
5.2.4 is contained in any published patent or published patent
application or which becomes otherwise published or generally known to
Requesting Party through no wrongful act of Requesting Party, from and
after the date it becomes published or generally known; or
5.2.5 is disclosed pursuant to Applicable Law.
ARTICLE VI
OPERATING METHODOLOGIES AND PRODUCT QUALITY
6.1 To the extent that Management Co. determines that such
application or adaptation is appropriate, Management Co. will cause NSM to model
its manufacturing operations after SDI's techniques and methodologies, with such
adaptations thereof and modifications therein as Management Co. shall deem
appropriate, and will endeavor to manufacture NSM's Products to a quality
comparable with similar products manufactured by SDI in accordance with SDI
Technology. Such determinations shall be made by Management Co., based solely
upon its own assessment of whether and to what extent SDI's techniques and
methodologies, and SDI Technology (or, if applicable, IDI Technology), with or
without
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adaptation or modification, is properly applicable to meet NSM's particular
needs and circumstances.
6.2 Management Co. shall permit SDI, at SDI's request from time to
time, to have access to NSM's plant for inspection, testing, and/or review of
NSM's operations and of its quality control. It is acknowledged and agreed,
however, that SDI shall have no continuing or ongoing obligation to approve,
evaluate, monitor, verify, warrant, or vouch for NSM's operating technique and
methodologies, or of its Product quality, nor to monitor or report on NSM's
manufacturing operations, or its compliance with SDI operating procedures or SDI
Technology.
6.3 It is further acknowledged and agreed that neither Management
Co. nor NSM, nor anyone active on its behalf, whether in the spoken or written
word and whether in securities offerings or filings or in the sale and marketing
of its Products, shall misrepresent nor make any untrue statement of a material
fact, or omit to state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading, regarding the relationship between SDI and NSM, or state, suggest or
imply that SDI manages NSM, exerts management influence or control over NSM,
supervises the operations of NSM or approves or certifies NSM's quality
standards or its compliance with SDI operating procedures or SDI Technology.
6.4 Neither Management Co. nor NSM shall have any right, power, or
authority, by reason of any right granted hereunder or otherwise, to use or
employ SDI's name, any SDI trademark (whether statutory or common law), or any
other trade dress or reference to SDI, in any testimonial, advertisement,
publication, electronic medium, or any other format, without SDI's prior written
approval.
ARTICLE VII
EFFECTIVE DATE
Although this Agreement has been executed by the Parties on the date
first above written, it shall become effective on and as of the Closing Date.
ARTICLE VIII
DURATION AND TERMINATION; DEFAULT
8.1 Unless sooner terminated as otherwise provided in this
Agreement, this Agreement shall remain in effect and continue for a period of
ten (10) years from the Closing Date.
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8.2 Notwithstanding the provisions of Paragraph 8.1 and without
prejudice to any other right and remedy that one Party may have against the
other Party for material breach or nonperformance of this Agreement, this
Agreement may be terminated:
(a) by either Party upon sixty (60) days' written notice if the
other Party shall violate any of the provisions or conditions of this
Agreement and shall fail to discontinue or remedy such violation within
said period of sixty (60) days of the date of such notice;
(b) by either Party immediately if the other Party shall become
bankrupt pursuant to the judgment of a court of competent jurisdiction.
8.3 In the event that either Party fails to perform any material
obligation or undertaking to be performed by it under this Agreement, and such
failure shall not be cured within sixty (60) days after written notice thereof
from the other Party, then a default shall have occurred hereunder and, in
addition to the right to terminate described in Section 8.2, and subject to the
provisions of Section 4.1(a) regarding the abatement of management fees for the
year of default, the non-defaulting Party shall have no right to assert any
claim for monetary damages, either in contract or in tort for ordinary
negligence. NSM, however, shall be entitled to assert a claim for monetary
damages in the event of SDI's gross negligence or willful misconduct,
notwithstanding NSM's termination of this Agreement pursuant to Section 8.2,
limited, however, to a claim for actual damages not exceeding the amount of the
annual fee payable pursuant to Section 4.1(a) during the year of default.
8.4 Expiration or termination of this Agreement for any reason shall
not in any case operate to relieve either Party from its responsibility to
fulfill any obligations under the provisions of this Agreement which shall have
accrued to such party prior to the time of such expiration or termination.
ARTICLE IX
ASSIGNMENT
Neither this Agreement nor any rights or benefits hereunder shall be
assignable or transferable to any third party, in whole or in part, by either
Party, without the prior written consent of the other Party. In the event of
assignment by operation of law, absent consent by the other Party, this
Agreement shall thereupon automatically terminate without notice.
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ARTICLE X
WAIVER OF COMPLIANCE
Any failure by either Party to enforce, at any time or for any
period of time, any of the provisions of this Agreement shall not constitute or
be construed as a waiver of that party's right thereafter to enforce each and
every provision of this Agreement.
ARTICLE XI
GOVERNMENTAL REGULATIONS AND FORCE MAJEURE
11.1 Any obligation of either Party hereunder shall be subject to
Applicable Law, respecting the export, import or disclosure of materials,
products, SDI Technology, or NSM Technology.
11.2 Upon the occurrence of an event of Force Majeure, the following
provisions shall apply:
(a) The Party who believes that his performance is excused by such
event of Force Majeure shall give written notice to the other as soon as
possible and with sufficient detail to permit the other to minimize
inconvenience and expense.
(b) Both Parties will cooperate to minimize the financial
consequences of such event of Force Majeure.
(c) Either Party hereto shall have the right to request the
termination of this Agreement if such event of Force Majeure continues for
a period greater than 180 days.
ARTICLE XII
ARBITRATION
12.1 In the event of any disputes, controversies or differences
which may arise among the parties, out of or in relation to or in connection
with this Agreement, or for the breach thereof, the parties hereto shall exert
their utmost to settle the same by means of good faith negotiations.
12.2 The disputes, controversies or differences arising out of this
Agreement shall be finally settled under the Rules of Conciliation and
Arbitration of the ICC by three arbitrators appointed in accordance with said
Rules, but no such award shall produce a result
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inconsistent with the provisions of Section 8.3 hereof. The place of arbitration
shall be London, England and the proceedings shall be conducted in the English
language.
12.3 Judgement upon the award rendered may be entered into any court
having competent jurisdiction thereof, or application may be made to such court
for a judicial acceptance of the award and an order of enforcement, as the case
may be.
ARTICLE XIII
NEGATION OF AGENCY AND OTHER RELATIONSHIPS
Nothing contained in this Agreement, nor anything done by either
Party in the discharge of its obligations hereunder, shall be deemed to
constitute either Party the agent, employee, joint venturer, or partner of the
other Party.
ARTICLE IV
NOTICE
Any notice required or contemplated hereunder shall be in English
and shall be deemed to be given when received by mail or facsimile (with
follow-on hard copy by mail), properly addressed as follows:
If to SDI: Keith E. Busse, President
Steel Dynamics, Inc.
4500 County Road 59 Butler, IN 46721
Fax: 1-219-868-8951
Phone: 1-219-868-8108
with a copy to:
Robert S. Walters, Esq.
Barrett & McNagny
215 East Berry Street
Fort Wayne, IN 46802
Fax: 1-219-423-8924
Phone: 1-219-423-8905
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If to Management Co.:
Mr. David Stickler
McDonald & Company Securities, Inc.
800 Superior Avenue
Cleveland, OH 44114
Fax: 1-216-443-3980
Phone: 1-216-443-2790
If to NSM:
Mr. John Schultes
Nakomthai Strip Mill Public Company Limited Chonburi
Industrial Estate (Bowin) 358 Moo 6
Highway 331, Bowin
Sri Racha, Chonburi 20230
Thailand
Fax: (66-38) 345-693, 345375
Phone: (66-38) 345-950-84, Ext. 255
with a copy to:
Mr. Chamni Janchai
Nakomthai Strip Mill Public Company Limited
16th Floor UM Tower
9 Ramkhamhaeng Road
Suanluang, Bangkok 10250, Thailand
Fax: (662) 719-9828-9
or to such other addresses either Party shall from time to time fumish in
writing to the other Party for such purpose. Such notice shall be deemed given
when actually received, or ten (10) days after the date mailed if sent by
certified or registered mail.
ARTICLE XV
GOVERNING LANGUAGE AND LAW
This Agreement is executed in English as the control text, and it
shall be governed by and noted in accordance with the laws of the State of New
York. The Parties their rights and obligations under this Agreement shall not be
governed by either the provisions of the 1980 U.N.
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Convention for the International Sale of Goods nor by the laws of any
jurisdiction other than as specified herein.
ARTICLE XVI
ENTIRE AGREEMEENT AND VARIATONS
This Agreement, together with the Exhibits attached hereto, or other
documents referenced herein, including the License Agreement, constitutes the
entire and only agreements between the Parties relative to the subject matter
hereof and supersedes and cancels all previous agreements, negotiations,
commitments and writings relative to the subject trial hereof, and may not be
changed or modified in any manner unless in writing signed by the authorized
officer or representative, on behalf of each of the Parties on or after the date
of execution of this Agreement.
ARTICLE XVII
SEVERABILITY OF PROVISIONS
If any of the provisions of this Agreement shall be declared to be
invalid or unenforceable by judicial or administrative decision, any such
provisions be deemed deleted and shall not in any way affect the validity of any
other provision of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
Date: NSM MANAGEMENT CO.
-------------
By /s/ [ILLEGIBLE]
---------------------------------------
Title
------------------------------------
Date: 03/12/98 NAKORNTHAI STRIP MILL PUBLIC
------------- COMPANY LIMITED
By /s/ John W. Schultes
--------------------------------------
Title President/CEO
-----------------------------------
Date: 03/12/98 STEEL DYNAMICS, INC.
-------------
By /s/ Tracy Shellabarger
--------------------------------------
Title Vice President
-----------------------------------
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