Exhibit 10.16(a)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of August
1, 2003, by and among Wheeling-Pittsburgh Corporation, a Delaware corporation
("WPC"), Wheeling-Pittsburgh Steel Corporation, a Delaware corporation ("WPSC"
and collectively with WPC, the "Company"), Stonehill Institutional Partners,
L.P., a Delaware limited partnership and Stonehill Offshore Partners Limited, a
Cayman Islands company (each an "Investor"), and each Eligible Holder (as
defined below) that subsequently becomes a party hereto (as provided in Section
2.1).
PREAMBLE
WHEREAS, pursuant to the Company's Third Amended Joint Plan of
Reorganization and Third Amended Disclosure Statement Pursuant to Section 1125
of the Bankruptcy Code for Debtor's Third Amended Joint Plan of Reorganization,
each dated May 19, 2003 (collectively, the "Plan"), WPC issued new shares of
WPC's common stock, par value $0.01 per share (the "Common Stock"), WPSC issued
new Senior Secured Notes Due 2011 (the "Series A Notes") and WPSC issued new
Senior Secured Notes Due 2010 (the "Series B Notes" and collectively with the
Series A Notes, the "Notes"); and
WHEREAS, it is a condition precedent to the consummation of the Plan that
the Company and the Investors enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. In addition to those terms defined elsewhere in this
Agreement, the following terms as used herein shall have the following meanings:
"Affiliate" shall mean, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common
control with such first-named Person. For the purposes of this definition,
"control" (including with correlative meanings, the terms "controlled by"
and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities or by contract or otherwise.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Eligible Holder" shall mean a Person (including an Investor) who
(a) holds Notes as of the date hereof, (b) reasonably believes itself,
whether by virtue of its ownership of securities of the Company or
otherwise, to be an Affiliate of WPC or WPSC as of the date hereof and (c)
continues to maintain a security ownership or other relationship that
could cause such Person reasonably to believe itself to be an Affiliate of
WPC or WPSC as of the date of the Notice (as defined in Section 2.1).
"Person" shall mean an individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization, and any government, governmental department or agency or
political subdivision thereof.
"Registrable Securities" shall mean any or all of the Common Stock,
the Series A Notes and the Series B Notes held by any Investor, any
Eligible Holder or any of their Affiliates,
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provided, however, that such securities shall cease to be Registrable
Securities with respect to any such Person when (a) such Person would be
entitled to sell all of the Common Stock and Notes owned by such Person
within a three (3) month period pursuant to the provisions of Rule 144 or
another exemption from the registration requirements of the Securities Act
under which such securities are thereafter freely tradable without
restriction under the Securities Act or (b) the Common Stock and the Notes
owned by such Person have been outstanding for longer than two (2) years
or (c) such Person has disposed of all of the Common Stock and Notes owned
by such Person in an offering registered under the Securities Act or
pursuant to the provisions of Rule 144 or another exemption from the
registration requirements of the Securities Act under which such
securities are thereafter freely tradable without restriction under the
Securities Act.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act
and any successor or substitute rule, law or provision.
"Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
2. DEMAND REGISTRATION RIGHT.
2.1. Registration Upon Request. At any time, but no more than one time in
the aggregate, either Investor (the "Initiating Holder") may deliver to the
Company written notice of the Initiating Holder's request that the Company cause
all or a portion of the Initiating Holder's Registrable Securities and/or
Registrable Securities held by any of the Initiating Holder's Affiliates to be
registered for resale under the Securities Act pursuant to this Section 2.1
(such registration under this Section 2.1 being referred to as a "Demand
Registration"), which written notice shall state (a) the name and address of
each Person for whose account Registrable Securities are to be registered for
resale pursuant to this Section 2.1, (b) the number and type of Registrable
Securities to be so registered on behalf of each such Person and (c) the total
number and type of Registrable Securities held by each such Person. No later
than fifteen (15) days thereafter, the Company shall use commercially reasonable
efforts to cause the trustees (as of the date hereof) under the indentures
governing the Notes to deliver to each holder of record of Notes as of the date
hereof written notice (the "Notice") that the Initiating Holder has exercised
its right to demand registration pursuant to Section 2.1 and that any recipient
of the Notice that is an Eligible Holder may request registration of any
Registrable Securities then owned by such Eligible Holder or any of its
Affiliates by delivering to the Company within thirty (30) days of the date of
the Notice (i) written notice of the number and type of Registrable Securities
it desires to have registered for resale, (ii) a written statement setting forth
the basis for its belief that it is an Eligible Holder, (iii) an reasonably
satisfactory document evidencing such Eligible Holder's agreement to become a
party to this Agreement, and (iv) such other information as the Company may
reasonably request by means of the Notice for the purpose of registering
Registrable Securities of such Eligible Holder. Thereafter, subject to the
conditions, limitations and provisions set forth below in Sections 2.4 and 3,
WPC and/or WPSC, as applicable, shall promptly prepare and file, and use its
reasonable best efforts to prosecute to effectiveness, an appropriate filing
with the Commission of a registration statement covering, in the aggregate, all
of those Registrable Securities with respect to which registration under the
Securities Act has been so requested by the Initiating Holder.
2.2. Period of Effectiveness. A registration requested pursuant to this
Section 2.1 hereof shall not count as the demand to which the Initiating Holder
is entitled hereunder unless such registration statement is declared effective
and remains effective for at least 180 days, in the case of an underwritten
offering contemplated by Section 2.3 hereof, following the first day of
effectiveness of such registration statement. The Company shall be permitted to
withdraw any registration statement filed pursuant to Section 2.1 if, at any
time, all of the Registrable Securities registered for resale thereunder have
been sold pursuant to such registration statement or otherwise cease to be
Registered Securities.
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2.3. Selection of Underwriters. If a registration pursuant to Section 2.1
involves an underwritten offering by the Initiating Holder or any of its
Affiliates, the underwriter or underwriters thereof shall be selected, after
consultation with the Company, by the Initiating Holder or one of its
Affiliates, provided that such underwriter or underwriters shall be acceptable
to the Company. The Company covenants that it shall not unreasonably withhold
its acceptance of any such underwriter or underwriters. In connection with any
such underwritten offering, the Company agrees to enter into an underwriting
agreement with the underwriter parties thereto and all desiring Eligible
Holders, in customary form reasonably satisfactory to the Company.
2.4. Additional Securities; Priority of Demand Registrations. Subject to
the provisions set forth below in this Section 2.4, the Company may include in
any registration statement filed pursuant to Section 2.1 additional securities
for sale for its own account or for the account of any other Person. If a
registration pursuant to Section 2.1 involves an underwritten offering, and the
managing underwriter shall advise the Company in writing that, in its opinion,
the number of shares of Common Stock and/or the total principal amount of the
Notes, as applicable, requested to be included in such registration exceeds the
number which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock and/or the
total principal amount of the Notes, as applicable, which the Company is so
advised can be sold in such offering, (i) first, the number of Registrable
Securities requested to be included in such registration pursuant to Section
2.1, and (ii) second, the other securities proposed to be included in such
registration, in accordance with the priorities, if any, then existing among the
Company and the holders of such other securities.
3. DEFERRAL. Notwithstanding anything to the contrary contained in this
Agreement, the obligation of WPC and/or WPSC to file a registration statement
pursuant to Section 2 shall be deferred for a period not to exceed one ninety
(90) day period in any twelve (12) month period if WPC and/or WPSC, as
applicable, in the good faith judgment of its board of directors, reasonably
believes that the filing thereof at the time requested would materially
adversely affect a pending or proposed public offering of securities, or an
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or any negotiations, discussions or pending proposals with respect
thereto. The Company shall, at such time as the reason for the deferral no
longer exists, use its reasonable best efforts to effect promptly the
registration under the Securities Act of the Registrable Securities covered by
the deferred registration statement in accordance with Section 2, and such
registration shall not be further deferred pursuant to this Section 3.
4. ADDITIONAL OBLIGATIONS OF THE COMPANY.
If WPC and/or WPSC is required under Section 2 to use its reasonable best
efforts to effect the registration of any of the Registrable Securities, WPC
and/or WPSC, as applicable, shall promptly:
(a) Prepare and file with the Commission, not later than 90 days
after receipt of a request for a Demand Registration, a registration
statement with respect to such Registrable Securities, on such form as the
Company reasonably determines to be appropriate, and use its reasonable
best efforts to cause such registration statement to become and remain
effective as soon as reasonably practicable after such filing; provided,
however that WPC and/or WPSC, as applicable, shall in no event be
obligated to cause any such registration to remain effective for more than
two years;
(b) Notify each seller of Registrable Securities pursuant to any
registration statement of any stop order issued or threatened by the
Commission and take all reasonable action required to prevent the entry of
such stop order or to remove it if entered;
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(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement;
(d) Furnish to each Eligible Holder of Registrable Securities being
so registered, prior to filing any registration statement hereunder or any
supplement or amendment thereto, such number of copies of such
registration statement, each amendment and supplement thereto (in each
case, including all exhibits thereto), the prospectus (including each
preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such holder may reasonably
request in order to facilitate the disposition of such Registrable
Securities;
(e) Use its best efforts to register and qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any Eligible Holder selling Registrable Securities may
reasonably request, and to continue such qualification in effect in each
such jurisdiction for as long as permissible pursuant to the laws of such
jurisdiction, or for as long as any such seller reasonably requests or
until all of such Registrable Securities are sold, whichever is shortest,
and do any and all other acts and things which may be reasonably necessary
or advisable to enable any such seller to consummate the disposition in
such jurisdictions of the Registrable Securities; provided that WPC and/or
WPSC, as applicable, shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions, and PROVIDED
FURTHER that (anything in Section 6 to the contrary notwithstanding with
respect to the bearing of expenses) if any jurisdiction in which the
securities shall be qualified shall require that expenses incurred in
connection with the qualification therein of the securities be borne by
selling shareholders, then such shareholders shall, to the extent required
by such jurisdiction, pay its PRO RATA share of selling expenses;
(f) Use its reasonable best efforts to obtain all other approvals,
covenants, exemptions or authorizations from such governmental agencies or
authorities as may be necessary to enable the sellers of such Registrable
Securities to consummate the disposition of such Registrable Securities;
(g) Immediately notify the Eligible Holders of such Registrable
Securities, at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event of
which WPC and/or WPSC, as applicable, has knowledge as a result of which
the prospectus contained in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made; and promptly (but in no event later than 30 days
from the date of delivery of such notice) prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that such prospectus will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made;
provided, that after such notification and until such supplement or
amendment has been so delivered, no such holder will deliver or otherwise
use the original prospectus;
(h) Enter into and perform customary agreements and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(i) Make available for inspection, on a confidential basis and after
reasonable prior notice, by any seller of Registrable Securities, any
managing underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
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retained by any seller or any managing underwriter (each, an "Inspector")
all financial and other records, pertinent corporate documents and
properties of the Company and any subsidiaries thereof as may be in
existence at such time as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and
any subsidiaries' officers, directors and employees, and the independent
public accountants of the Company, to supply all information reasonably
requested by any such Inspector in connection with such registration
statement;
(j) Obtain a "cold comfort" letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters, as the managing
underwriter, as applicable, may reasonably request;
(k) Furnish, at the request of any seller of Registrable Securities
on the date such securities are delivered to the underwriters for sale
pursuant to such registration or, if such securities are not being sold
through underwriters, on the date the registration statement with respect
to such securities becomes effective, an opinion, dated such date, of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such
request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such seller may reasonably
request and as are customarily included in such opinions;
(l) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable but no later than
15 months after the effective date of the registration statement, an
earnings statement covering a period of 12 months beginning after the
effective date of the registration statement, in a manner which satisfies
the provisions of Section 11(a) of the Securities Act;
(m) Keep each seller of Registrable Securities advised as to the
initiation and progress of any registration under Section 2 hereunder;
(n) Provide officers' certificates and other customary closing
documents; and
(o) Use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby, it
being understood that the Company shall not be required to cause any of
its officers or employees to participate in any "road show" or similar
marketing effort being conducted with respect to an underwritten Demand
Registration including Registrable Securities.
5. FURNISH INFORMATION.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that any Eligible Holder of
Registrable Securities requesting registration thereof shall furnish to the
Company such information regarding such Eligible Holder, the Registrable
Securities held by such Eligible Holder, the proposed plan of distribution of
such Registrable Securities, and any other information as the Company shall
reasonably request and as shall be required in order to effect any such
registration by the Company.
6. EXPENSES.
All expenses incurred by the Company in connection with any registration
pursuant to this Agreement, including without limitation any underwriting
discounts and commissions relating to shares
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being registered for the account of the Company, all registration and
qualification fees, printing costs, fees and disbursements of counsel for the
Company and any of its independent public accountants and any other accounting
and legal fees, charges and expenses incurred by the Company (including legal
fees and other costs and expenses incurred in connection with compliance with
state securities or blue sky laws), and the reasonable fees, charges and
expenses of any special experts retained by the Company in connection with any
registration pursuant to the terms of this Agreement, regardless of whether the
registration statement filed in connection with such registration is declared
effective. The Company shall also pay the reasonable fees, charges and
disbursements (not to exceed $20,000) of a single counsel to all of the Eligible
Holders participating in any requested registration of Registrable Securities
pursuant to Section 2. All of the expenses described in this Section 6 are
referred to in this Agreement as "REGISTRATION EXPENSES." Notwithstanding the
foregoing provisions of this Section 6, in connection with any registration
hereunder, each Eligible Holder of Registrable Securities being registered shall
pay all underwriting discounts and commissions, all other expenses of the
Eligible Holders, including without limitation any underwriting discounts and
commissions relating to Registrable Shares and the costs and fees of counsel
(except as set forth in the second preceding sentence) and experts retained by
such Eligible Holder, and any capital gains, income or transfer taxes, if any,
attributable to the sale of such Registrable Securities, pro rata with respect
to payments of discounts and commissions in accordance with the number of shares
sold in the offering.
7. INDEMNIFICATION.
7.1. Indemnification. In the event that any Registrable Securities are
included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Eligible Holder thereof, any underwriter (as defined in
the Securities Act) for the Company, and each officer, director, partner
and employee of such Eligible Holder or such underwriter and each Person,
if any, who controls such Eligible Holder or such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, to which they may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained
in such registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements
thereto or any document incorporated by reference in any of the foregoing,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; and will reimburse such Eligible Holder,
such underwriter or such officer, director or controlling Person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in this
Section 7.1(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, damage, liability or action to the extent that it
primarily arises out of or is based upon an untrue statement or alleged
untrue statement or omission made in connection with such registration
statement, preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by such Eligible Holder, any underwriter for such Eligible
Holder or controlling Person with respect to such Eligible Holder;
(b) To the extent permitted by law, such Eligible Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who have signed such registration
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statement, each Person, if any, who controls the Company within the
meaning of the Securities Act, and any underwriter for the Company (within
the meaning of the Securities Act) against any and all losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling Person, or underwriter may become subject to, under the
Securities Act or otherwise, only to the extent that as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any untrue or alleged untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus contained therein or any amendments or supplements
thereto or any document incorporated by reference in any of the foregoing,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance upon
and in conformity with written information furnished by such Eligible
Holder expressly for use in connection with such registration; and such
Eligible Holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling Person,
or underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
liability of any Eligible Holder under this Section 7.1(b) shall be
limited to the amounts of net proceeds received by such Eligible Holder in
the offering giving rise to such liability; FURTHER PROVIDED, that the
indemnity agreement contained in this Section 7.1(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of such Eligible
Holder against which the request for indemnity is being made (which
consent shall not be unreasonably withheld); and
(c) Promptly after receipt by an indemnified party under this
Section 7.1 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 7.1, notify the indemnifying party
in writing of the commencement thereof and the indemnifying party shall
have the right to participate in and, to the extent the indemnifying party
desires, jointly with any other indemnifying party similarly noticed, to
assume at its expense the defense thereof with counsel mutually
satisfactory to the parties. The failure to notify an indemnifying party
promptly of the commencement of any such action shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 7.1 only if and to the extent such failure to promptly notify was
prejudicial to its ability to defend such action, and the omission so to
notify the indemnifying party will not relieve the indemnifying party of
any liability which he may have to any indemnified party otherwise other
than under this Section 7.1. The indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel (other than reasonable
costs of investigation) shall be paid by the indemnified party unless (i)
the indemnifying party agrees to pay the same, (ii) the indemnifying party
fails to assume the defense of such action with counsel satisfactory to
the indemnified party in its reasonable judgment, or (iii) the named
parties to any such action (including any impleaded parties) have been
advised by such counsel that representation of such indemnified party and
the indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct; provided, however, that the
indemnifying party shall only have to pay the fees and expenses of one
lead firm of counsel and one local counsel in each applicable jurisdiction
for all indemnified parties. In either of such cases the indemnifying
party shall not have the right to assume the defense of such action on
behalf of such indemnified party. No indemnifying party shall be liable
for any settlement entered into without its written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any
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pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (A) includes an unconditional release
of the indemnified party from all liability arising out of such action or
claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
The rights accorded to any indemnified party hereunder shall be in
addition to any rights that such indemnified party may have at common law,
by separate agreement or otherwise.
(d) If the indemnification provided for in Section 7(a) from the
indemnifying party is unavailable to an indemnified party in respect of
any losses, claims, damages, expenses or other liabilities referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses or
other liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims,
damages, expenses or other liabilities, as well as any other relevant
equitable considerations. The relative faults of such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact, was made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the indemnifying party's
and indemnified party's relative intent, knowledge, access to information
and opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages, expenses or
other liabilities referred to above shall be deemed to include, subject to
the limitations set forth in Sections 7(a), 7(b) and 7(c), any legal or
other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution pursuant to this Section 7(d).
7.2. Override. Notwithstanding anything in this Section 7 to the
contrary, if, in connection with an underwritten public offering of the
Registrable Securities, the Company, any holder of Registrable Securities and
the underwriters enter into an underwriting or purchase agreement relating to
such offering which contains provisions covering indemnification as between the
Company and such holder, then the indemnification provision of this Section 7
shall be deemed inoperative for purposes of such offering.
8. LISTING; RULE 144; OTHER EXEMPTIONS.
Following registration of any Registrable Securities under the Exchange
Act, the Company covenants that it shall file any reports required to be filed
by it under the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and that it shall take such further action as each
Eligible Holder may reasonably request (including, but not limited to, providing
any information necessary to comply with Rules 144 and 144A (if available with
respect to resales of the Registrable Securities) under the Securities Act), all
to the extent required from time to time to enable such Eligible Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 or Rule 144A (if available
with respect to resales of the Registrable Securities)
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under the Securities Act, as such rules may be amended from time to time, or
(ii) any other rules or regulations now existing or hereafter adopted by the
Commission.
9. GENERAL.
9.1. Assignment. None of the parties to this Agreement shall assign or
delegate any of their respective rights or obligations under this Agreement
without the prior written consent of each of the other parties hereto.
9.2. No Inconsistent Agreements; Other Registration Rights. The Company
shall not enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Eligible Holders in this Agreement,
other than any lock-up agreement with the underwriters in connection with an
underwritten offering pursuant to which the Company agrees, for a period not in
excess of 90 days (not in excess of 180 days with respect to securities being
offered for sale by the Company) not to register for sale, and not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock.
9.3. Remedies. The Eligible Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
9.4. Survival. The rights and obligations of the parties hereto set forth
herein shall survive indefinitely, unless and until, by their respective terms,
they are no longer applicable.
9.5. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous arrangements or understandings with respect thereto.
9.6. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
(i) If to the Company, to:
Wheeling-Pittsburgh Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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Attn: Xxxxxx X. Xxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
(ii) If to an Investor, to:
c/o Stonehill Capital Management, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
with a copy to:
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxxx
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) when
delivered in hand to the party to which it was directed, (ii) if sent by telex,
telecopier, facsimile machine or telegraph and properly addressed in accordance
with the foregoing provisions of this Section 9.6, when received by the
addressee, (iii) if sent by commercial courier guaranteeing next business day
delivery, on the business day following the date of delivery to such courier, or
(iii) if sent by first-class mail, postage prepaid, and properly addressed in
accordance with the foregoing provisions of this Section 8.4, (A) when received
by the addressee, or (B) on the third business day following the day of dispatch
thereof, whichever of (A) or (B) shall be the earlier.
9.7. Amendments and Waivers. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retrospectively or prospectively), with, but only with, the written consent of
each of the other parties hereto.
9.8. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.9. No Waiver of Future Breach. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof. No assent, express or implied, by any party hereto
to any breach of or default in any agreement or condition herein contained on
the part of any other party hereto shall constitute a waiver of or assent to any
succeeding breach of or default in the same or any other agreement or condition
hereof by such other party.
9.10. No Implied Rights or Remedies; Third Party Beneficiaries. Except as
otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
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or by reason of this Agreement. Except as otherwise expressly provided in this
Agreement, there are no intended third party beneficiaries under or by reason of
this Agreement.
9.11. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
9.12. Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and
vice-versa.
9.13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, excluding choice of law rules
thereof. 9.12. JURISDICTION. Each party to this Agreement hereby irrevocably
agrees that any legal action or proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby may be brought
in the courts of the State of New York or of the United States of America for
the Southern District of New York and hereby expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and expressly
waives any claim of improper venue and any claim that such courts are an
inconvenient forum. Each party hereby irrevocably consents to the service of
process of any of the aforementioned courts in any such suit, action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth in Section 9.6, such service to become
effective ten days after such mailing.
9.14. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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IN WITNESS WHEREOF, this Registration Rights Agreement has been executed
under seal by the parties hereto as of the day and year first above written.
WHEELING-PITTSBURGH CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
WHEELING-PITTSBURGH STEEL CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
STONEHILL INSTITUTIONAL PARTNERS, L.P.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: General Partner
STONEHILL OFFSHORE PARTNERS LIMITED
By Stonehill Advisers LLC,
Its Investment Advisor
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: General Partner
