NOTE PURCHASE AGREEMENT
Exhibit
10.26
EXECUTION VERSION
This Note Purchase Agreement (this “Agreement”) is entered into as of the 15th day of March,
2007, by and between Wheeling-Pittsburgh Corporation, a Delaware corporation (the “Company”) and
each of the investors set forth on the signature pages hereto (each, an “Investor,” and
collectively, the “Investors”).
WHEREAS, the Company is offering, in compliance with Rule 506 of Regulation D of the
Securities Act of 1933, as amended (the “Securities Act”), to certain accredited investors in a
private placement transaction, convertible notes in a series with an aggregate principal amount of
up to Fifty-Million Dollars ($50,000,000), substantially in the form attached hereto as Exhibit
A (the “Notes”).
WHEREAS, on the terms and subject to the conditions set forth herein, each Investor desires to
purchase a Note in the face principal amount set forth opposite Investor’s name on Exhibit
B, which Notes shall be convertible into shares (subject to adjustment as set forth in the
Notes, the “Conversion Shares,” and together with the Notes, the “Securities”) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”) pursuant to the terms of the Notes.
WHEREAS, the Company desires to set forth the terms and conditions of and to provide for the
issuance of the Notes described herein and with respect to certain registration rights relating to
the shares of Common Stock issuable upon conversion of the Notes, pursuant to their terms.
NOW, THEREFORE, for and in consideration of the mutual premises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Investors hereby agree as follows:
1) ISSUANCE OF THE CONVERTIBLE NOTES. Subject to the terms and conditions set forth in this
Agreement, the Company hereby agrees to sell to each Investor, and each Investor hereby agrees to
purchase from the Company, the face principal amount of the Notes set forth opposite each
Investor’s name on Exhibit B (the “Purchase Price”). The Note delivered to an Investor
will be delivered in the form of a single Note registered in the name of the Investor (or in the
name of such nominee or in such other denominations as Investor may specify). The terms and
conditions of the Notes are incorporated herein by reference.
2) THE CLOSING. The purchase and sale of the Notes by the Company to the Investors and the
delivery of the Purchase Price to the Company (the “Closing”) will take place on the second
business day following the satisfaction of all conditions precedent set forth in Section 7 hereof
(or such other date as the Company and the Investors shall determine), at the offices of the
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000. At the Closing, (a) each Investor shall pay or
tender to the Company the applicable Purchase Price in immediately available funds by wire transfer
to the Company in accordance with the wiring instructions provided by the Company; and (b) the
Company shall issue and deliver to each Investor the Note(s) acquired hereunder by such Investor.
3) REPRESENTATIONS AND WARRANTIES OF INVESTORS. Each Investor represents and warrants individually
and not jointly to the Company as of the date hereof as follows:
a) Investor is an “accredited investor” as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act.
b) The Notes are being acquired by Investor for investment purposes only, for Investor’s own
account and not with the view to any resale or distribution thereof, and Investor is not
participating, directly or indirectly, in an underwriting of such Notes, and will not take, or
cause to be taken, any action that would cause Investor to be deemed an “underwriter” of such Notes
as defined in Section 2(11) of the Securities Act.
c) Investor acknowledges that Investor has been offered an opportunity to ask questions of,
and receive answers from, the Company concerning the Company and Investor’s proposed purchase of
the Notes, and that such Investor is satisfied with the Company’s response to any such requests.
d) Investor has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Notes, is able to bear such
risks, and has obtained, in Investor’s judgment, sufficient information from the Company to
evaluate the merits and risks of an investment in the Notes. Investor has evaluated the risks of
investing in the Company and has determined that the Notes are a suitable investment for Investor.
e) Investor has full power and authority to enter into this Agreement and to perform its
obligations hereunder.
f) All action on the part of Investor necessary for the authorization, execution and delivery
of this Agreement and for the performance of all obligations of Investor hereunder has been taken,
including with respect to all required corporate or organizational grant of authority with respect
to such Investors as are corporations or other forms of entity. This Agreement has been duly
executed and delivered by Investor and constitutes a valid and legally binding obligation of
Investor, enforceable in accordance with its respective terms, subject to (i) the laws of
bankruptcy and the laws affecting creditors’ rights generally and (ii) the availability of
equitable remedies.
g) Investor is not relying on the Company with respect to tax and other investment advice in
connection with its decision to purchase the Notes. Investor acknowledges that it has been advised
by the Company to consult with its tax or financial consultants prior to entering into this
Agreement.
4) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to the
Investors as of the date hereof as follows:
a) The Company is duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation. The Company is duly qualified as a foreign corporation to
do business and is in good standing in each jurisdiction in which its
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ownership or use of property or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified or in good standing would not
have a material adverse effect on the business, operations, assets, financial condition or
prospects of the Company (a “Material Adverse Effect”). The Company has full power and authority:
(i) to own, lease, use and operate its properties; (ii) to carry on its business as presently
operated and conducted; and (iii) to enter into this Agreement and perform its obligations
hereunder, including the issuance, sale and delivery of the Notes.
b) The execution and delivery of this Agreement and of the Notes by the Company and the
consummation by it of the transactions contemplated hereby (including without limitation, the
issuance of the Securities) have been duly authorized by the Company’s Board of Directors and no
further consent or authorization of the Company, its Board of Directors, or its stockholders is
required. All action on the part of the Company necessary for the authorization, execution and
delivery of this Agreement and for the performance of all obligations of the Company hereunder has
been taken. This Agreement and the Notes have been duly executed and delivered by the Company and
constitute valid and legally binding obligations of the Company, enforceable in accordance with
their respective terms, subject to (i) the laws of bankruptcy and the laws affecting creditors’
rights generally and (ii) the availability of equitable remedies.
c) The authorized capital stock of the Company consists of 80,000,000 shares of Common Stock
and 20,000,000 shares of preferred stock, par value $0.001 per share (“Preferred Stock”). At the
close of business on February 28, 2007, (i) 15,287,293 shares of Common Stock were issued and
outstanding (excluding shares of Common Stock held by the Company in its treasury), (ii) 6,666
shares of Common Stock were held by the Company in its treasury, (iii) 940,566 shares of the
Company’s Common Stock were reserved for issuance under the Company’s 2003 Management Stock
Incentive Plan (of which 19,221 shares were subject to outstanding stock options and 318,310 shares
were subject to outstanding stock unit awards), (iv) 16,469 shares of Common Stock were reserved
for distribution to creditors pending resolution of certain disputed claims, and (v) no shares of
Preferred Stock were issued or outstanding or held in the Company’s treasury. All outstanding
shares of Common Stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights. There are no anti-dilution or price adjustment
provisions contained in any security issued and outstanding by the Company (or in any agreement
providing rights to security holders) that will be triggered by the issuance of the Securities.
Except as may be described in any documents which have been publicly filed by any of the Company’s
stockholders, to the Company’s knowledge, there are no agreements between the Company’s
stockholders with respect to the voting or transfer of the Company’s capital stock or with respect
to any other aspect of the Company’s affairs
d) The Company has timely filed and furnished all required reports, schedules, forms,
prospectuses, and registration, proxy and other statements with the Securities and Exchange
Commission (“SEC”) since August 1, 2003 (collectively and together with all documents filed on a
voluntary basis on Form 8-K, and in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the “SEC Documents”). As of their respective
effective dates (in the case of SEC Documents that are registration statements filed pursuant to
the requirements of the Securities Act) and as of their respective SEC filing
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dates (in the case of all other SEC Documents), each SEC Document complied in all material
respects with the applicable requirements of the Securities Act or the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and the rules and regulations thereunder, as applicable.
Except to the extent that information contained in any SEC Document has been revised or superseded
by a later-filed SEC Document or by information supplied to the Investors in writing by the
Company, none of the SEC Documents contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
e) The Conversion Shares to be issued upon conversion of the Notes, when issued in compliance
with the provisions of this Agreement and the Notes, will be validly issued and will be free of any
liens or encumbrances, except as provided under applicable securities laws.
f) The execution, delivery and performance of this Agreement and each of the documents
contemplated hereby, including the Notes, by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without limitation, the issuance of
Securities) will not (i) conflict with or result in a violation of any provision of the certificate
of incorporation, as amended, of the Company or the bylaws, as amended, of the Company, (ii)
violate or conflict with, or result in a breach of any provision of, or constitute a default (or an
event which with notice or lapse of time or both could become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any material agreement,
indenture, patent, patent license or instrument to which the Company is a party, or (iii) result in
a violation of any federal, state, local, municipal, foreign, international, multinational or other
law, rule, regulation, order, judgment, decree, ordinance, policy or directive, including those
entered, issued, made, rendered or required by any court, administrative or other governmental
body, agency, or authority, or any arbitrator (collectively, “Legal Requirements”) (including
federal and state securities laws and regulations (assuming the accuracy of the representations and
warranties of each Investor contained in Section 3(a) hereof) and regulations of any
self-regulatory organizations to which the Company or its securities are subject) applicable to the
Company or by which any property or asset of the Company is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect). The Company is not in
violation of its certificate of incorporation, bylaws or other organizational documents and the
Company is not in default (and no event has occurred which with notice or lapse of time would
result in a default) under, and the Company has not taken any action or failed to take any action
that would give to others any rights of termination, amendment, acceleration or cancellation of,
any agreement or instrument to which the Company is a party or by which any property or assets of
the Company is bound or affected, except for possible defaults as would not, individually or in the
aggregate, have a Material Adverse Effect. Except with respect to any filings or notices related
to the issuance of the Conversion Shares to be filed with Nasdaq, if any, and as required under the
Securities Act and any applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any court,
governmental agency, regulatory agency, self regulatory organization or stock market or any third
party in order for it to execute, deliver or perform any of its obligations under this Agreement or
the
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Notes. All consents, authorizations, orders, filings and registrations that the Company is
required to effect or obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the date hereof.
g) As of their respective dates, the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with United States generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to
the extent they may not include footnotes, year end adjustments or may be condensed or summary
statements) and fairly present in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of
their operations and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). Except as set forth in the financial statements
of the Company included in the SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to
December 31, 2006, and (ii) obligations under contracts and commitments incurred in the ordinary
course of business and not required under generally accepted accounting principles to be reflected
in such financial statements, which, individually or taken in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
h) Except with respect to the transactions contemplated hereby and as set forth in the SEC
Documents filed since such date, since December 31, 2005 (i) the Company and each of its
subsidiaries has conducted its business only in the ordinary course, consistent with past practice,
and since that date, no changes have occurred which would reasonably be expected to have a Material
Adverse Effect; and (ii) the Company has not incurred any liabilities (contingent or otherwise)
other than (A) trade payables, accrued expenses and other liabilities incurred in the ordinary
course of business consistent with past practice and (B) liabilities not required to be reflected
on the Company’s financial statements pursuant to generally accepted accounting principles,
consistently applied or required to be disclosed in filings made with the SEC.
i) There is no Action (as defined below) pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries that (i) adversely affects
or challenges the legality, validity or enforceability of this Agreement, or (ii) would, if there
were an unfavorable decision, have or reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries, nor any director or officer thereof (in his or her
capacity as such), is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has
not been, and to the knowledge of the Company, there is not pending any investigation by the SEC
involving the Company or any current or former director or officer of the Company (in his or her
capacity as such). For purposes of this Agreement, “Action” shall mean any action, suit claim,
inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or
investigation against or affecting the Company, any of its
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subsidiaries or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency, regulatory authority (federal, state, county, local or
foreign), public board, stock market, stock exchange or trading facility.
j) The Company and each of its subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exemptions, consents, certificates,
approvals and orders necessary to own, lease and operate its properties and to carry on its
business as it is now being conducted (collectively, “Permits”), and there is no Action pending or,
to the knowledge of the Company, threatened regarding suspension or cancellation of any of the
Permits. Neither the Company nor any of its subsidiaries is in conflict with, or in default or
violation of, any of the Permits, except for any such conflicts, defaults or violations which,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
k) Since December 31, 2005, no event has occurred or, to the knowledge of the Company,
circumstance exists that (with or without notice or lapse of time): (a) would reasonably be
expected to constitute or result in a violation by the Company or any of its subsidiaries, or a
failure on the part of the Company or its subsidiaries to comply with, any Legal Requirement; or
(b) would reasonably be expected to give rise to any obligation on the part of the Company or any
of its subsidiaries to undertake, or to bear all or any portion of the cost of, any remedial action
of any nature in connection with a failure to comply with any Legal Requirement, except in either
case that would not reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its subsidiaries has received any notice or other communication from any regulatory
authority or any other person, nor does the Company have any knowledge regarding: (x) any actual,
alleged, possible or potential violation of, or failure to comply with, any Legal Requirement, or
(y) any actual, alleged, possible or potential obligation on the part of the Company or any of its
subsidiaries to undertake, or to bear all or any portion of the cost of, any remedial action of any
nature in connection with a failure to comply with any Legal Requirement, except in either case
that would not reasonably be expected to have a Material Adverse Effect.
l) The Company is in compliance in all material respects with the provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder that are applicable
to it and has taken reasonable steps such that the Company expects to be in a position to comply
with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder at such time as Section 404 becomes applicable to the Company.
m) The Company is, and has reason to believe that for the foreseeable future it will continue
to be, in compliance with all applicable rules of the Nasdaq Global Market. The Company has not
received notice from Nasdaq that the Company is not in compliance with the rules or requirements
thereof. The issuance and sale of the Securities under this Agreement does not contravene the
rules and regulations of the Nasdaq Global Market, and no approval of the stockholders of the
Company is required for the Company to issue the Securities as contemplated by this Agreement
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n) The Company understands and confirms that the Investors will rely on the representations
and covenants contained herein in effecting the transactions contemplated by this Agreement and the
Notes. All representations and warranties provided to the Investors furnished by or on behalf of
the Company, taken as a whole are true and correct and do not contain any untrue statement of
material fact or omit to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not misleading. No event or
circumstance has occurred or information exists with respect to the Company or its subsidiaries or
its or their businesses, properties, prospects, operations or financial conditions, which, under
applicable law, rule or regulation, requires public disclosure or announcement by the Company but
which has not been so publicly announced or disclosed.
5) RESTRICTED SECURITIES.
a) Each Investor understands that the Securities have not been registered under the Securities
Act, by reason of a specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent and the accuracy of
each Investor’s representations as expressed herein. Each Investor understands that the Securities
are “restricted securities” under the Securities Act, inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such laws and applicable
regulations such Securities may be resold without registration under the Securities Act only in
certain limited circumstances and each Investor agrees not to transfer the Securities unless such
transfer is made: (i) pursuant to an effective registration statement under the Securities Act;
(ii) to the Company; (iii) outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act and in compliance with local laws; or (iv) within the United States (A) in
accordance with the exemption from registration under the Securities Act provided by Rule 144
thereunder, if available, and in compliance with any applicable state securities laws, and each
Investor shall be required to furnish to the Company an opinion to such effect from counsel of
recognized standing reasonably satisfactory to the Company prior to such offer, sale or transfer or
(B) in a transaction that does not require registration under the Securities Act or applicable
state securities laws, and each Investor shall be required to furnish to the Company an opinion to
such effect from counsel of recognized standing reasonably satisfactory to the Company prior to
such offer, sale or transfer. Each Investor acknowledges that, the Company has no obligation to
register or qualify the Securities for resale except as set forth in Section 6 hereof and that the
Company is required to refuse to register any transfer not made in accordance with the provisions
of this Section 5. Each Investor further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, and on requirements relating to the Company which are
outside of such Investor’s control, and which the Company is under no obligation and may not be
able to satisfy. Each Investor also acknowledges that the documentation representing the
Securities shall bear restrictive legends as required under applicable federal and state securities
laws. The provisions of this Section 5 shall survive the Closing.
b) Each Investor acknowledges that the Notes and any certificates evidencing the Conversion
Shares will bear a legend substantially as set forth below, in addition to any legends required by any state securities laws:
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“NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
6) REGISTRATION RIGHTS. Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in the form attached
hereto as Exhibit C, pursuant to which the Company has agreed under certain circumstances
to register the resale of the Conversion Shares under the Securities Act and the rules and
regulations promulgated thereunder, and applicable state securities laws.
7) CLOSING CONDITIONS
| a) | Conditions of the Company’s Obligations at Closing. The obligations of the Company under this Agreement with respect to the issuance of the Notes to any Investor are subject to the fulfillment on or before the Closing of each of the following conditions with respect to such Investor, unless waived by the Company. |
i) Each Investor shall have executed and delivered this Agreement, the Registration Rights
Agreement contemplated by Section 6, and tendered the Purchase Price for such Investor’s Note(s) to
the Company.
ii) The representations and warranties of the Investors contained in Section 3 of this
Agreement shall be true and correct in all material respects (except with respect to the
representations contained in Section 3(a), which shall be true and correct in all respects) on and
as of the Closing with the same effect as though such representations and warranties had been made
as of the Closing.
iii) The Company shall have obtained any necessary consent of the Senior Debt Holders, as
defined in the Note, with respect to the transactions contemplated by this Agreement and the Notes.
| b) | Conditions of the Investors’ Obligations at Closing. The obligations of each Investor under this Agreement with respect to the purchase of the Notes are subject to the fulfillment on or before the Closing of each of the following conditions, unless waived by each Investor. |
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i) The Company shall have executed and delivered this Agreement, the Registration Rights
Agreement contemplated by Section 6, and the Notes to the Investors.
ii) Any consents or approvals required to be secured by the Company for the consummation of
the transactions contemplated by this Agreement shall have been obtained and shall be reasonably
satisfactory to the Investors.
iii) The representations and warranties of the Company contained in Section 4 of this
Agreement shall be true and correct in all material respects on and as of the Closing with the same
effect as though such representations and warranties had been made as of the Closing and the
Company shall have performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied or complied with by
the Company at or prior to the closing.
iv) The Company’s independent registered public accounting firm shall have agreed to deliver
an unqualified opinion with respect to the conformity of the consolidated financial statements of
the Company at December 31, 2006 with generally accepted accounting principles in the United
States.
v) There shall have been no material adverse change in the assets, liabilities (contingent or
otherwise), affairs, business, operations, prospects or condition (financial or otherwise) of the
Company prior to the Closing.
8) INDEMNIFICATION
| a) | The Company agrees to indemnify each Investor and its affiliates and hold each of them harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of such Investor’s counsel in connection with any investigative, administrative or judicial proceeding), that may be incurred by such Investor or such affiliates as a result of any claims made against such Investor or such affiliates by any person that relate to or arise out of (i) any breach by the Company of any of its representations, warranties or covenants contained in this Agreement or in the Notes, or (ii) any litigation, investigation or proceeding instituted by any person with respect to this Agreement or the Securities (excluding, however, any such litigation, investigation or proceeding which arises solely from the acts or omissions of such Investor or its affiliates). |
| b) | Any person entitled to indemnification hereunder (“Indemnified Party”) will (i) give prompt notice to the party required to provide the indemnification pursuant to this Section 8, of any third party claim, action or suit with respect to which it seeks indemnification (the “Claim”) (but omission of such notice shall not relieve the Company from liability hereunder except to the extent it is actually prejudiced by such failure to give notice), specifying in reasonable detail the factual basis for the Claim, the amount thereof, estimated in good faith, and the method of computation of the Claim, all with |
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| reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such indemnification is sought with respect to the Claim, and (ii) unless in such Indemnified Party’s reasonable judgment a conflict of interest may exist between such Indemnified Party and the Company with respect to such claim, permit the Company to assume the defense of the Claim with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate fully with the Company with respect to the defense of the Claim and, if the Company elects to assume control of the defense of the Claim, the Indemnified Party shall have the right to participate in the defense of the Claim at its own expense. If the Company does not elect to assume control or otherwise participate in the defense of the Claim, then the Indemnified Party may defend through counsel of its own choosing. If such defense is not assumed by the Company, the Company will not be subject to any liability under this Agreement or otherwise for any settlement made without its consent (but such consent will not be unreasonably withheld or delayed). If the Company elects not to or is not entitled to assume the defense of a Claim, it will not be obligated to pay the fees and expenses of more than one counsel for all Indemnified Parties with respect to the Claim, unless an actual conflict of interest exists between such Indemnified Party and any other of such Indemnified Parties with respect to the Claim, in which event the Company will be obligated to pay the fees and expenses of such additional counsel or counsels |
9) NO INTEGRATION. The Company shall not make any offers or sales of any security (other than the
Securities) under circumstances that would require registration of the Securities being offered or
sold hereunder under the Securities Act (except as provided in the Registration Rights Agreement)
or cause the offering of the Securities to be integrated with any other offering of securities by
the Company in such a manner as would require the Company to seek the approval of its stockholders
for the issuance of the Securities under any stockholder approval provision applicable to the
Company or its securities.
10) NOTICE. Any notices or other communications in connection herewith shall be sufficiently given
if sent by registered or certified mail, postage prepaid, or by facsimile transmission, and:
(a) if to the Company, at
Wheeling-Pittsburgh Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to counsel to the Company as the Company shall notify the Investors from time to time.
(b) if to an Investor, at the address on such Investor’s signature page hereto,
or at such other address as an Investor or the Company shall designate to the other by notice in writing.
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11) ASSIGNABILITY. Neither party may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other party; provided, however,
that: (a) any Investor may assign its rights hereunder to its affiliates (as such term is defined
in Rule 144 of the Securities Act) or (b) any Investor may assign a right to purchase a portion of
the amount of the Note subscribed to hereunder, (up to fifty percent (50%) of the face principal
amount subscribed to by Investor) to another accredited institutional investor; provided
further that any such assignee must first deliver to the Company a written instrument
confirming that such assignee shall be bound by the terms and conditions of this Agreement.
12) SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than the parties hereto
or their respective successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
13) MODIFICATION. Neither this Agreement nor any provision hereof shall be modified, discharged or
terminated except by an instrument in writing signed by (a) the Company and (b) Investors (or their
permitted assignees or transferees) holding Notes (or having subscribed therefor) representing at
least 75% of the aggregate principal amount of all Notes or Conversion Shares then outstanding (or
subscribed for).
14) ENTIRE AGREEMENT. This Agreement and the documents referred to herein (including, without
limitation, the Notes) constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and no party shall be liable or bound to any other party in any
manner by any warranties, representations, covenants or agreements except as specifically set forth
herein or therein.
15) APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws
of the state of Delaware applicable to agreements made and to be performed entirely within such
state, without regard to the principles of conflict of laws, and, to the extent it involves any
United States statute, in accordance with the laws of the United States.
16) FINDERS’ FEES. Each party represents that it neither is nor will be obligated for any finders’
fees or commissions in connection with this Agreement or the transactions contemplated hereby.
Each Investor agrees to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of finders’ fees (and the costs and expenses (including
legal, travel and out-of-pocket expenses) of defending against such liability or asserted
liability) for which such Investor or any of its officers, directors, employees, or representatives
is responsible. The Company agrees to indemnify and hold harmless each Investor from any liability
for any commission or compensation in the nature of a finders’ fee (and the costs and expenses
(including legal, travel and out-of-pocket expenses) of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or representatives is
responsible, in accordance with the provisions of Section 8.
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17) SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
18) FEES AND EXPENSES. Except as otherwise expressly provided for in this Agreement, the Company,
on the one hand, and each Investor, on the other hand, shall each pay all of its own expenses
incurred in connection with the transactions contemplated by this Agreement, including any and all
legal, accounting, investment banking and consulting fees and expenses incurred in negotiating,
executing and delivering this Agreement and the other agreements, exhibits, schedules, documents
and instruments contemplated by this Agreement, provided that at the Closing, the Company shall
reimburse Tontine Partners, L.P. for all reasonable expenses incurred by them in connection with
the negotiation, preparation, execution, delivery and performance of this Agreement and the form of
Note and its due diligence review of the Company, including, without limitation, reasonable
attorneys’ fees and expenses, and out-of-pocket travel costs and expenses, but not to exceed
$40,000 without the prior written consent of the Company.
19) COUNTERPARTS. This Agreement may be executed in two (2) or more original or facsimile
counterparts all of which together shall constitute one and the same instrument.
20) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience
of reference only and do not constitute a part of and shall not be utilized in interpreting this
Agreement.
21) DELAYS OR OMISSIONS. Each and all of the various rights, powers and remedies of the parties
shall be considered cumulative with and in addition to any other rights, powers and remedies which
such parties may have at law or in equity in the event of the breach of any of the terms of this
Agreement. No failure to exercise or delay in the exercise of any right, power or remedy accruing
to Investor upon any breach or default of the Company under this Agreement shall impair any such
right, power or remedy of Investor nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
22) PUBLICITY. The Company and the Investors shall have the right to review a reasonable period of
time before issuing any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company shall be entitled, without
the prior approval of the Investors, to make any press release with respect to such transactions as
is required by applicable law and regulations (although the Investors shall be consulted by the
Company in connection with any such press release prior to its release and shall be provided with a
copy thereof and be given an opportunity to comment thereon). Notwithstanding the foregoing, the
Company shall file with the SEC a Form 8-K disclosing the transactions herein within four (4)
business days of the Closing Date and attach the relevant agreements and instruments to either such
Form 8-K or the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, and the
Investors may make such filings as may be required under Section 13 and Section 16 of the Exchange Act.
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23) FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
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The undersigned have duly executed this Agreement as of the date first written above.
| WHEELING-PITTSBURGH CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Investor Signature Page]
| Investor Name: |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| Tax ID: | ||||
