Exhibit 1
Underwriting Agreement
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$300,000,000 5.65% Senior Notes due 2013
$450,000,000 6.05% Senior Notes due 2017
$350,000,000 6.65% Senior Notes due 2037
May 16, 2007
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
United States Steel Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule 1
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), $300,000,000 principal amount of its 5.65% Senior Notes due
2013 (the "2013 Securities"), $450,000,000 principal amount of its 6.05% Senior
Notes due 2017 (the "2017 Securities") and $350,000,000 principal amount of its
6.65% Senior Notes due 2037 (the "2037 Securities" and, together with the 2013
Securities and the 2017 Securities, the "Securities"). The Securities will be
issued pursuant to an indenture dated as of May 21, 2007 as amended and
supplemented to the date hereof (the "Indenture") between the Company and The
Bank of New York, as trustee (the "Trustee").
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement on Form S-3 (No.
333-141080), including a prospectus (the "Basic Prospectus"), relating to the
Securities. The Company has also filed, or proposes to file, with the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities (the "Prospectus Supplement"). The
registration statement, as amended at the time of this Agreement, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430 Information"), is referred to herein as the
"Registration Statement"; and as used herein, the term "Prospectus" means the
Basic Prospectus included in the Registration Statement (and any amendments
thereto) as supplemented by the prospectus supplement specifically relating to
the Securities in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Securities and the term "Preliminary Prospectus"
means the preliminary prospectus supplement specifically relating to the
Securities together with the Basic Prospectus. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Registration
Statement and the Prospectus. References herein to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein with respect to
the Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed by the Company under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (the "Exchange Act") subsequent to the date of this
Agreement which are deemed to be incorporated by reference therein. For
purposes of this Agreement, the term "Effective Time" means the effective date
of the Registration Statement with respect to the offering of the Securities, as
determined for the Company pursuant to Section 11 of the Securities Act and Item
512 of Regulation S-K, as applicable.
At or prior to the time when the first sale of the Securities is made (the
"Time of Sale"), the Company will prepare certain information (collectively, the
"Time of Sale Information"), which information is identified in Schedule 2
hereto as constituting part of the Time of Sale Information.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees
to issue and sell the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
principal amount of the Securities set forth opposite such Underwriter's name in
Schedule 1 hereto at a price equal to 99.3445% of the principal amount thereof,
in the case of the 2013 Securities, 99.243% of the principal amount thereof, in
the case of the 2017 Securities and 98.530% of the principal amount thereof, in
the case of the 2037 Securities, in each case plus accrued interest, if any,
from May 21, 2007 to the Closing Date (as such term is hereinafter defined).
The Company will not be obligated to deliver any of the Securities except upon
payment for all the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public
offering of the Securities as soon after the effectiveness of this Agreement as
in the judgment of the Representatives is advisable, and initially to offer the
Securities on the terms set forth in the Prospectus. The Company acknowledges
and agrees that the Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 10:00 A.M., New York City time, on May 21,
2007, or at such other time or place on the same or such other date, not later
than the fifth business day thereafter, as the Representatives and the Company
may agree upon in writing. The time and date of such payment and delivery is
referred to herein as the "Closing Date".
(d) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes representing
the 2013 Securities, the 2017 Securities and the 2037 Securities (collectively,
the "Global Notes"), with any transfer taxes payable in connection with the sale
of the Securities duly paid by the Company. The Global Notes will be in form
and substance reasonably satisfactory to the Representatives.
(e) The Company acknowledges and agrees that the Underwriters listed in
Schedule 1 hereto are acting solely in the capacity of an arm's length
contractual counterparty to the Company with respect to any offering of the
Securities contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person with respect to any such offering.
Additionally, no such Underwriter is advising the Company or any other person as
to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and such Underwriters
shall have no responsibility or liability to the Company with respect thereto.
Any review by such Underwriters of the Company, the transactions contemplated
thereby or other matters relating to such transactions will be performed solely
for the benefit of the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement has
become effective under the Securities Act. The Registration Statement is an
"automatic shelf registration statement" as defined under Rule 405 of the
Securities Act that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. The Company has not received any order suspending the effectiveness of
the Registration Statement by the Commission and has not received notice of any
proceeding for that purpose or notice of any action instituted pursuant to
Section 8A of the Securities Act against the Company or related to the offering
has been initiated or threatened by the Commission; as of the Effective Time,
the Registration Statement complied, and as of the date of any amendment thereto
will comply, in all material respects with the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively the "Trust Indenture Act") and the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto, the Prospectus did not, and as of the Closing
Date, the Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
(b) Time of Sale Information. The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in such Time of Sale Information. No statement of material fact included in
the Prospectus that is required to be included in the Time of Sale Information
has been omitted from the Time of Sale Information and no statement of material
fact included in the Time of Sale Information that is required to be included in
the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, made, used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by
the Company or its agents and representatives (other than a communication
referred to in clauses (i), (ii) and (iii) of this Section 3(c)), an "Issuer
Free Writing Prospectus") other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule 3 hereto as constituting the Time of Sale
Information and (v) any electronic road show or any other written
communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been or will be (within the time
period specified in Rule 433) filed in accordance with the Securities Act (to
the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, or filed prior to
the first use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Incorporated Documents. The documents incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus,
when filed with the Commission, conformed or will conform, as the case may be,
in all material respects with the requirements of the Exchange Act and did not
and will not contain any 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, in the light of the circumstances under which they were
made, not misleading.
(e) Company Organization and Good Standing. The Company has been duly
incorporated and is an existing corporation in good standing under the laws of
the State of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Time of Sale Information
and the Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not reasonably be
expected to have a material adverse effect upon the financial condition,
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(f) Subsidiary Organization and Good Standing. Each subsidiary of the
Company listed on Annex A (each, a "Designated Subsidiary") has been duly
incorporated or otherwise organized and is an existing corporation, limited
liability company or other business entity in good standing under the laws of
the jurisdiction of its incorporation or organization, with power and authority
(corporate, limited liability company and other) to own its properties and
conduct its business as described in the Time of Sale Information and the
Prospectus; and each Designated Subsidiary of the Company is duly qualified to
do business as a foreign corporation or other business entity in good standing
in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the failure
to so qualify would not reasonably be expected to have a Material Adverse
Effect; all of the issued and outstanding capital stock or other equity
securities of each Designated Subsidiary of the Company have been duly
authorized and are validly issued, fully paid and nonassessable; and the shares
of capital stock or other equity securities of each Designated Subsidiary owned
by the Company, directly or through subsidiaries, are owned free from liens,
encumbrances and defects, except such liens, encumbrances and defects that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The entities listed on Annex A hereto include every subsidiary
of the Company that is a "significant subsidiary" (as such term is defined in
Rule 1-02 of Regulation S-X, substituting 5% thresholds for the 10% threshold
throughout such definition) of the Company.
(g) Capitalization. All outstanding shares of capital stock of the Company
have been duly authorized and are validly issued, fully paid and nonassessable.
The Company has an authorized capitalization as of March 31, 2007 as set forth
in the Registration Statement, the Time of Sale Information and the Prospectus
under the heading "Capitalization."
(h) No Broker's Fees. Except as disclosed in the Time of Sale Information
and the Prospectus, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(i) No Registration Rights. There are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or with any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act.
(j) No Consents Required. No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement, the
supplemental indenture setting forth the terms of the Securities in accordance
with the terms of the Indenture (the "Supplemental Indenture"), the Securities,
the Indenture (collectively, the "Transaction Documents") in connection with the
issuance and sale of the Securities or the consummation of the Transactions by
the Company, except such (i) as have been obtained and made under the Securities
Act and (ii) as may be required under state securities laws in connection with
the purchase and distribution of the Securities by the Underwriters, and except
for such consents, approvals, authorizations, orders or filings the failure of
which to obtain or make would not reasonably be expected to have a Material
Adverse Effect.
(k) No Conflicts. The execution, delivery and performance by the Company
of the Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Designated Subsidiary of the Company or any
of their properties, (ii) any agreement or instrument to which the Company or
any such Designated Subsidiary is a party or by which the Company or any such
Designated Subsidiary is bound or to which any of the properties of the Company
or any such Designated Subsidiary is subject or (iii) the charter or by-laws of
the Company or any such Designated Subsidiary.
(l) Due Authorization. The Company has full right, power and authority to
execute and deliver the Transaction Documents and to perform its obligations
hereunder and thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby has been
duly and validly taken.
(m) The Indenture. The Indenture has been duly authorized by the Company
and has been duly qualified under the Trust Indenture Act and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (collectively, the "Enforceability
Exceptions").
(n) The Securities. The Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and delivered in
accordance with the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to the Enforceability Exceptions, and will be entitled to
the benefits of the Indenture.
(o) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(p) Other Transaction Documents. Each of the Transaction Documents other
than this Agreement, the Securities and the Indenture have been duly authorized
by the Company and, when executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by the Enforceability Exceptions.
(q) No Violation or Default. Neither the Company nor any of the
Designated Subsidiaries is (i) in violation of its respective charter or by-laws
or other organizational documents, (ii) in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
Designated Subsidiaries is a party or by which the Company or any Designated
Subsidiaries or their respective property is bound, or (iii) in violation of any
law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except for such defaults and
violations in the case of these clauses (ii) and (iii) that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r) Title to Real and Personal Property. Except as disclosed in the Time
of Sale Information and the Prospectus, the Company and the Designated
Subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances
and defects, except such liens, encumbrances and defects that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and except as disclosed in the Time of Sale Information and the
Prospectus, the Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the business of the Company and its subsidiaries,
taken as a whole. The Company and its subsidiaries own or lease all properties
and assets necessary to conduct their business as described in the Time of Sale
Information and the Prospectus.
(s) Licenses and Permits. The Company and the Designated Subsidiaries
possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct their business as
described in the Time of Sale Information and the Prospectus and have not
received any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, if determined adversely to
the Company or any Designated Subsidiary, would reasonably be expected to have
a Material Adverse Effect.
(t) Descriptions of the Transaction Documents. The Transaction Documents
conform in all material respects to the descriptions thereof contained in the
Time of Sale Information and the Prospectus.
(u) No Labor Disputes. No labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent that would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(v) Title to Intellectual Property. The Company and the Designated
Subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct its business
as described in the Time of Sale Information and the Prospectus, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
Designated Subsidiaries, would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(w) Compliance With Environmental Laws. Except as disclosed in the Time
of Sale Information and the Prospectus, neither the Company nor any of its
subsidiaries is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(x) Legal Proceedings. Except as described in the Time of Sale Information
and the Prospectus, there are no pending actions, suits or proceedings against
or affecting the Company, any of its subsidiaries or any of their respective
properties that, individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Securities; and, to the
Company's knowledge, no such actions, suits or proceedings are threatened.
(y) Financial Statements of the Company. The financial statements of the
Company and the related notes thereto included or incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and, except as otherwise disclosed in the Time of
Sale Information and the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods covered
thereby, and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein; and the other
financial information of the Company included in the Registration Statement, the
Time of Sale Information and the Prospectus has been derived from the accounting
records of the Company and its subsidiaries and presents fairly the information
shown thereby.
(z) Taxes. The Company and its Designated Subsidiaries have timely filed
all material federal, state, local and foreign income tax returns that have been
required to be filed and have paid all taxes indicated by said returns and all
assessments received by any of them to the extent that such taxes have become
due and are not being contested in good faith in appropriate proceedings. All
material tax liabilities have been adequately provided for in the financial
statements of the Company.
(aa) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included in the Registration Statement, the
Time of Sale Information and the Prospectus, (i) there has not been any change
in the capital stock or long term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
position, results of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement that is material to the Company and
its subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries taken
as a whole; and (iii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each case of (i),
(ii) and (iii) of this Section 3(aa) as otherwise disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus.
(bb) Reporting Requirements. The Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act and files
reports with the Commission on the Electronic Data Gathering, Analysis, and
Retrieval (XXXXX) system.
(cc) Independent Accountants. PricewaterhouseCoopers LLP, that has audited
certain financial statements of the Company and its subsidiaries, is an
independent registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and
as required by the Securities Act.
(dd) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on the one hand,
and the directors, officers, stockholders, customers or suppliers of the Company
or any of its subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement, the Time of Sale Information and
the Prospectus and that is not so described.
(ee) Compliance With ERISA. Each employee benefit plan, within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance in all material
respects with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption; and for each such plan that
is subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, no "accumulated funding deficiency" as defined in Section 412 of the Code
has been incurred, whether or not waived, and, except as otherwise disclosed in
the Time of Sale Information and the Prospectus, the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions.
(ff) Disclosure Controls. The Company and its subsidiaries maintain an
effective system of "disclosure controls and procedures" (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Commission's rules and forms, including
controls and procedures designed to ensure that such information is accumulated
and communicated to the Company's management as appropriate to allow timely
decisions regarding required disclosure. As of the date of the Time of Sale
Information and the Prospectus, the Company and its subsidiaries have carried
out evaluations of the effectiveness of their disclosure controls and procedures
as required by Rule 13a-15 of the Exchange Act.
(gg) Accounting Controls. The Company and its subsidiaries maintain systems
of "internal control over financial reporting" (as defined in Rule 13a-15(f) of
the Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of their respective principal
executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, including,
but not limited to internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus, there
are no material weaknesses in the Company's internal controls over financial
reporting.
(hh) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of
the Company or to the Company's knowledge, any of the Company's directors or
officers, in their capacities as such, to comply in all material respects with
any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(ii) No Unlawful Payments. Neither the Company nor any of its subsidiaries
nor, to the best knowledge of the Company, any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or
any of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(jj) No Stabilization. The Company has not taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
(kk) Investment Company Act. The Company is not and, after giving effect
to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Time of Sale Information and the Prospectus, will
not be an "investment company" as defined in the Investment Company Act of 1940.
(ll) Status under the Securities Act. The Company is not an ineligible
issuer and is a well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the Securities Act in
connection with the offering of the Securities. The Company will pay the
registration fees for this offering within the time period required by Rule
456(b)1(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
4. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the registration
fees for this offering within the time period required by Rule 456(b)1(i) under
the Securities Act (without giving effect to the proviso therein) and in any
event prior to the Closing Date and (ii) file the Prospectus in a form approved
by the Underwriters with the Commission pursuant to Rule 424 under the
Securities Act not later than the close of business on the second business day
following the date of determination of the public offering price of the
Securities or, if applicable, such earlier time as may be required by Rule
424(b) and Rule 430A, 430B or 430C under the Securities Act. The Company will
file any Issuer Free Writing Prospectus (including the Pricing Term Sheet
substantially in the form of Schedule 4 hereto) to the extent required by Rule
433 under the Securities Act, and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, to each
Underwriter (A) a conformed copy of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith and (B) during the Prospectus Delivery Period (as
hereinafter defined), as many copies of the Prospectus (including all amendments
and supplements thereto and documents incorporated by reference therein) and
each Issuer Free Writing Prospectus (if applicable) as the Representatives may
reasonably request. As used herein, the term "Prospectus Delivery Period" means
such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered (or would be
required to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. In
connection with the transactions contemplated by the Agreement, before making,
preparing, using, authorizing, approving, referring to or filing any Issuer Free
Writing Prospectus, and before filing any amendment or supplement to the
Registration Statement or the Prospectus, the Company will furnish to the
Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not make,
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the
Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus, any amendment to the Prospectus or
any Issuer Free Writing Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission
for any additional information; (iv) upon receipt of notice of the issuance by
the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence
of any event within the Prospectus Delivery Period as a result of which the
Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
existing when the Prospectus, the Time of Sale Information or any Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the
receipt by the Company of any notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant
to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use all
reasonable efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date
(i) any event shall occur or condition shall exist as a result of which the Time
of Sale Information as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with applicable law, the Company will immediately notify
the Underwriters thereof and forthwith prepare and, subject to paragraph (c) of
this Section 3, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representatives may designate, such
amendments or supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with applicable law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with applicable law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) of this Section 3,
file with the Commission and furnish to the Underwriters and to such dealers as
the Representatives may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with applicable law.
(g) Blue Sky Compliance. The Company will qualify the Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as
a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify,
(ii) file any general consent to service of process in any such jurisdiction
or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h) Earning Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(i) Clear Market. During the period from the date hereof through and
including the date that is 30 days after the date hereof, the Company will not,
without the prior written consent of the Representatives, offer, sell, contract
to sell or otherwise dispose of any debt securities issued or guaranteed by the
Company and having a term of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Time of Sale Information and the
Prospectus under the heading "Use of Proceeds".
(k) No Stabilization. The Company will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
(l) Record Retention. The Company will, pursuant to reasonable
procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission for three years after the
Closing Date in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby
represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "free writing prospectus", as
defined in Rule 405 under the Securities Act (which term includes use of any
written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release
issued by the Company) other than (i) a free writing prospectus that, solely as
a result of use by such underwriter, would not trigger an obligation to file
such free writing prospectus with the Commission pursuant to Rule 433, (ii) any
Issuer Free Writing Prospectus listed on Schedule 3 hereto or prepared pursuant
to Section 3(c) or Section 4(c) (including any electronic road show), or (iii)
any free writing prospectus prepared by such underwriter and approved by the
Company in advance in writing.
(b) Notwithstanding the foregoing the Underwriters may use a term sheet
substantially in the form of Schedule 4 hereto without the consent of the
Company.
(c) The Representatives, on behalf of the several Underwriters, will,
pursuant to reasonable procedures developed in good faith, retain copies of
each Issuer Free Writing Prospectus that is not filed with the Commission for
three years after the Closing Date in accordance with Rule 433 under the
Securities Act.
(d) It is not subject to any pending proceeding under Section 8A of the
Securities Act with respect to the offering of the Securities (and will promptly
notify the Company if any such proceeding against it is initiated during the
Prospectus Delivery Period).
6. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective amendment
to the Registration Statement is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, and the
Representatives shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date hereof; no order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such
purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the
Securities Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed
with the Commission under the Securities Act (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433 under the Securities Act)
and in accordance with Section 4(a) hereof; and all requests by the Commission
for additional information shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and
(B) the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded any securities issued or guaranteed by the
Company or any of its subsidiaries by any "nationally recognized statistical
rating organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of any securities issued or guaranteed by
the Company or any of its subsidiaries (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution and delivery
of this Agreement, no event or condition of a type described in Section 3(aa)
hereof shall have occurred or shall exist, which event or condition is not
described in the Time of Sale Information (excluding any amendment or supplement
thereto) and the Prospectus (excluding any amendment or supplement thereto) and
the effect of which in the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement,
the Time of Sale Information and the Prospectus.
(e) Officer's Certificate. The Representatives shall have received on and
as of the Closing Date a certificate of an executive officer of the Company who
has specific knowledge of the Company's financial matters and is reasonably
satisfactory to the Representatives (i) confirming that such officer has
carefully reviewed the Registration Statement, the Time of Sale Information and
the Prospectus and, to the best knowledge of such officer, the representations
set forth in Sections 3(a) and 3(b) hereof are true and correct; (ii) confirming
that the other representations and warranties of the Company in this Agreement
are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and (iii) to the effect set forth in paragraphs
(a), (c) and (d) of this Section 6.
(f) Comfort Letters for the Company. On the date of this Agreement and
on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, containing statements
and information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to the Company's financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus;
provided that the letter delivered on the Closing Date shall use a "cut-off"
date no more than three business days prior to the Closing Date.
(g) Opinion of Counsel for the Company. Counsel for the Company shall
have furnished to the Representatives, at the request of the Company, its
written opinions, dated the Closing Date and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Annex B hereto.
(h) Opinion of Outside Counsel for the Company. Xxxxxx, Xxxxx &
Xxxxxxx LLP, counsel for the Company, shall have furnished to the
Representatives, at the request of the Company, their written opinion, dated
the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, to the effect set forth in
Annex C hereto.
(i) Opinion and Negative Assurance Statement of Counsel for the
Underwriters. The Representatives shall have received on and as of the Closing
Date an opinion and negative assurance statement of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, with respect to such matters as
the Representatives may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and
no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities; and no injunction or order of any federal, state or foreign court
shall have been issued that would, as of the Closing Date, prevent the issuance
or sale of the Securities.
(k) Good Standing. The Representatives shall have received on and as of
the Closing Date satisfactory evidence of the good standing of the Company and
its Designated Subsidiaries, other than U.S. Steel Kosice, s.r.o, in their
respective jurisdictions of organization and their good standing in such other
jurisdictions as the Representatives may reasonably request, in each case in
writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(l) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
(m) Supplemental Indenture Relating to Securities. The Representatives
shall have received an executed copy of the Supplemental Indenture.
All opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time
of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) of this Section 7, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus or
any Time of Sale Information, it being understood and agreed that the only such
information consists of the following: the statements concerning the
Underwriters contained in the third (the second sentence of such paragraph),
fourth and fifth paragraphs under the heading "Underwriting".
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) of this Section 7, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 7 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 7. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) counsel
to the Indemnified Person shall have reasonably concluded that there are or are
likely to be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for any Underwriter, its affiliates, directors
and officers and any control persons of such Underwriter shall be designated in
writing by the Representatives and any such separate firm for the Company, its
directors, its officers who signed the Registration Statement and any control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportions as the net proceeds (before deducting
expenses) received by the Company from the sale of the Securities and the total
underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate offering price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) of
this Section 7. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in paragraph (d) of
this Section 7 shall be deemed to include, subject to the foregoing limitations,
any legal or other expenses incurred by such Indemnified Person in connection
with any such action or claim. Notwithstanding the provisions of this Section
7, in no event shall an Underwriter be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by such Underwriter were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by any
of the New York Stock Exchange, the NASDAQ Stock Market or the over-the-counter
market; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market;
(iii) a general moratorium on commercial banking activities shall have been
declared by federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States shall have occurred; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis, either within or outside the United States, that, in
the judgment of the Representatives, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the terms and in the manner contemplated by this
Agreement, the Time of Sale Information and the Prospectus.
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter
defaults on its obligation to purchase the Securities that it has agreed to
purchase hereunder, the non-defaulting Underwriters may in their discretion
arrange for the purchase of such Securities by other persons satisfactory to the
Company on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to
the non-defaulting Underwriters to purchase such Securities on such terms. If
other persons become obligated or agree to purchase the Securities of a
defaulting Underwriter, either the non-defaulting Underwriters or the Company
may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 9, purchases Securities that a defaulting Underwriter
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) of this Section 9, the
aggregate principal amount of such Securities that remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Securities that such Underwriter agreed to
purchase hereunder plus such Underwriter's pro rata share (based on the
principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) of this Section 9, the
aggregate principal amount of such Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) of this Section
9, then this Agreement shall terminate without liability on the part of the non-
defaulting Underwriters. Any termination of this Agreement pursuant to this
Section 9 shall be without liability on the part of the Company, except that the
Company will continue to be liable for the payment of expenses as set forth in
Section 10 hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection; (ii) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus (including all
exhibits, amendments and supplements thereto in connection therewith) and the
distribution thereof; (iii) the costs of reproducing and distributing each of
the Transaction Documents; (iv) the fees and expenses of the Company's counsel
and independent accountants; (v) the fees and expenses incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Representatives may designate and the preparation, printing and distribution of
a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, the National Association of Securities Dealers,
Inc.; and (ix) all expenses incurred by the Company in connection with any "road
show" presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the
Company for any reason fails to tender the Securities for delivery to the
Underwriters or (iii) the Underwriters decline to purchase the Securities for
any reason permitted under this Agreement, other than due to a termination
pursuant to Section 9, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to herein, and the affiliates of each Underwriter referred to in Section 7
hereof. Nothing in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement
or any investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than Saturday, a Sunday or a legal public holiday as defined in
5 U.S.C. 6103; (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act; and (d) the term "significant subsidiary" has the
meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
14. Miscellaneous. (a) Authority of the Representatives. Any action
by the Representatives or the Underwriters hereunder may be taken by X.X.
Xxxxxx Securities Inc. or Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Representatives and the Underwriters, and any such action taken by X.X. Xxxxxx
Securities Inc. or Xxxxxx Xxxxxxx & Co. Incorporated, as the case may be, shall
be binding upon the Representatives and the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt at the
addresses set forth in the following sentence. Notices to the Underwriters
shall be given to the Representatives c/o X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention: High Grade
Syndicate Desk, 8th floor; or c/o Morgan Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention:
Investment Banking Division. Notices to the Company shall be given to it at 000
Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, (fax: 000-000-0000); Attention: Xxxxxx
X. Xxxxxxx, Assistant General Counsel.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each
of which shall be an original and all of which together shall constitute one and
the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided below.
Very truly yours,
UNITED STATES STEEL CORPORATION
By /s/ X. X. Xxxxxxxx
------------------
Name: X. X. Xxxxxxxx
Title: Vice President & Treasurer
Confirmed and accepted as of the
date set forth on the first page hereof
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxx Xxxxxx
----------------
Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Yurij Slyz
--------------
Authorized Signatory
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
Schedule 1
Principal Principal Principal
Amount of Amount of Amount of
2013 2017 2037
Underwriter Securities Securities Securities
----------- ---------- ---------- ----------
X.X. Xxxxxx Securities Inc. $ 105,750,000 $ 158,625,000 $ 56,350,000
Xxxxxx Xxxxxxx & Co. Incorporated 60,000,000 90,000,000 70,000,000
Banc of America Securities LLC 42,750,000 -- 38,290,000
Greenwich Capital Markets, Inc. 3,000,000 68,625,000 15,085,000
PNC Capital Markets LLC -- -- 67,025,000
Scotia Capital (USA) Inc. 22,500,000 33,750,000 26,250,000
Barclays Capital Inc. 12,000,000 18,000,000 14,000,000
UBS Securities LLC 12,000,000 18,000,000 14,000,000
Xxxxxx Brothers Inc. 12,000,000 18,000,000 14,000,000
ABN AMRO Incorporated 12,000,000 18,000,000 14,000,000
NatCity Investments, Inc. 6,000,000 9,000,000 7,000,000
Mizuho Securities USA Inc. 6,000,000 9,000,000 7,000,000
Commerzbank Capital Markets Corp. 6,000,000 9,000,000 7,000,000
------------- ------------- -------------
Total $ 300,000,000 $ 450,000,000 $ 350,000,000
Schedule 2
Title of Securities:
5.65% Senior Notes due 2013 ("2013 Notes")
6.05% Senior Notes due 2017 ("2017 Notes")
6.65% Senior Notes due 2037 ("2037 Notes")
Aggregate Principal Amount:
$300,000,000 (2013 Notes)
$450,000,000 (2017 Notes)
$350,000,000 (2037 Notes)
Price to Public:
99.957% of the principal amount of the 2013 Notes, plus accrued interest,
if any, from May 21, 2007
99.893% of the principal amount of the 2017 Notes, plus accrued interest,
if any, from May 21, 2007
99.405% of the principal amount of the 2037 Notes, plus accrued interest,
if any, from May 21, 2007
Purchase Price to Underwriters:
99.3445% of the principal amount of the 2013 Notes, plus accrued interest,
if any from May 21, 2007; and the selling concession shall be 0.375%, and
the reallowance concession shall be 0.250%, in each case, of the principal
amount of the 2013 Notes
99.243% of the principal amount of the 2017 Notes, plus accrued interest,
if any from May 21, 2007; and the selling concession shall be 0.400%, and
the reallowance concession shall be 0.250%, in each case, of the principal
amount of the 2017 Notes
98.530% of the principal amount of the 2037 Notes, plus accrued interest,
if any from May 21, 2007; and the selling concession shall be 0.500%, and
the reallowance concession shall be 0.250%, in each case, of the principal
amount of the 2037 Notes
Indenture:
Indenture dated as of May 21, 2007, between the Company and The Bank of New
York Trust Company, N.A., as Trustee
Maturity:
June 1, 2013 (2013 Notes)
June 1, 2017 (2017 Notes)
June 1, 2037 (2037 Notes)
Interest Rate:
5.65%, from and including May 21, 2007 (2013 Notes)
6.05%, from and including May 21, 2007 (2017 Notes)
6.65%, from and including May 21, 2007 (2037 Notes)
Interest Payment Dates:
June 1 and December 1 of each year, commencing on December 1, 2007
Interest Payment Record Dates:
May 15 and November 15 of each year
Redemption Provisions:
As set forth in the Pricing Term Sheet, substantially in the form of
Schedule 4 hereto.
Sinking Fund Provisions:
None
Other Provisions:
As to be set forth in the Prospectus
Time of Closing:
10:00 a.m. (New York City time), May 21, 2007
Closing Location:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Names and Address of Representatives:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Addresses for Notices:
X.X. Xxxxxx Securities Inc.
Attention: High Grade Syndicate Desk, 8th floor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
Attention: Investment Banking Division
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Time of Sale:
7:26 p.m. (New York City time), May 16, 2007
Schedule 3
Time of Sale Information
* Preliminary Prospectus, dated May 16, 2007.
* Pricing Term Sheet, dated May 16, 2007, relating to the Securities and
attached as Schedule 4 hereto.
Schedule 4
UNITED STATES STEEL CORPORATION
PRICING TERM SHEET
MAY 16, 2007
$300,000,000 5.65% Senior Notes due 2013
Issuer: United States Steel Corporation
Title of Securities: 5.65% Senior Notes due 2013
Principal Amount: $ 300,000,000
Maturity: June 1, 2013
Coupon: 5.65%
Price: 99.957% of principal amount
Yield to maturity: 5.658%
Benchmark Treasury: 4.500% U.S. Treasury due April 30, 2012
Spread to Benchmark
Treasury: 103 basis points (1.03%)
Benchmark Treasury
Price and Yield: 99-14; 4.628%
Interest Payment June 1 and December 1 of each year,
Dates: commencing on December 1, 2007
Interest Payment
Record Dates: May 15 and November 15 of each year
Redemption
Provisions:
Mandatory Mandatory redemption at 101% of the
Redemption: aggregate principal amount of the Notes
together with accrued and unpaid
interest, if the acquisition of Lone Star
Technologies Inc. is not completed on or
prior to October 1, 2007.
Optional Optional redemption at any time in whole,
Redemption: or from time to time in part, at a
redemption price equal to the greater of
(i) 100% of the principal amount of the
Notes redeemed and (ii) the sum of the
present values of remaining scheduled
payments of principal and interest
(exclusive of interest accrued to the
date of redemption) on such Notes
discounted to the redemption date on a
semi-annual basis at the Treasury yield
plus 15 basis points, plus accrued
interest to the redemption date.
Change of Control If a change of control repurchase event
Repurchase Event: occurs, the Company will be required to
make an offer to repurchase all
outstanding Notes at a price in cash
equal to 101% of the principal amount of
the Notes, plus any accrued and unpaid
interest to but not including the
repurchase date.
Settlement: T + 3 days; May 21, 2007
CUSIP: 000000XX0
ISIN: US912909AB47
Joint Book-Running X.X. Xxxxxx Securities Inc., Xxxxxx
Managers Xxxxxxx & Co. Incorporated and Banc of
America Securities LLC
Ratings: Xxxxx'x: Baa3 (stable outlook)
S&P: BB+ (stable outlook)
Fitch: BBB- (stable outlook)
Note: A securities rating is not a
recommendation to buy, sell or hold
securities and may be subject to revision
or withdrawal at any time.
Pro Forma Earnings to Three months ended Year ended
Fixed Charges Ratio: March 31, 2007 December 31, 2006
-------------- -----------------
14.00 11.85
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling X.X. Xxxxxx Securities Inc. collect
at 0-000-000-0000, Xxxxxx Xxxxxxx & Co. Incorporated toll-free at 1-866-718-1649
and Banc of America Securities LLC toll free at 1-800-294-1322.
UNITED STATES STEEL CORPORATION
PRICING TERM SHEET
MAY 16, 2007
$450,000,000 6.05% Senior Notes due 2017
Issuer: United States Steel Corporation
Title of Securities: 6.05% Senior Notes due 2017
Principal Amount: $450,000,000
Maturity: June 1, 2017
Coupon: 6.05%
Price: 99.893% of principal amount
Yield to maturity: 6.064%
Benchmark Treasury: 4.500% U.S. Treasury due May 15, 2017
Spread to Benchmark
Treasury: 135 basis points (1.35%)
Benchmark Treasury
Price and Yield: 98-10; 4.714%
Interest Payment June 1 and December 1 of each year,
Dates: commencing on December 1, 2007
Interest Payment
Record Dates: May 15 and November 15 of each year
Redemption
Provisions:
Mandatory Mandatory redemption at 101% of the
Redemption: aggregate principal amount of the Notes
together with accrued and unpaid
interest, if the acquisition of Lone Star
Technologies Inc. is not completed on or
prior to October 1, 2007.
Optional Optional redemption at any time in whole,
Redemption: or from time to time in part, at a
redemption price equal to the greater of
(i) 100% of the principal amount of the
Notes redeemed and (ii) the sum of the
present values of remaining scheduled
payments of principal and interest
(exclusive of interest accrued to the
date of redemption) on such Notes
discounted to the redemption date on a
semi-annual basis at the Treasury yield
plus 25 basis points, plus accrued
interest to the redemption date.
Change of Control If a change of control repurchase event
Repurchase Event: occurs, the Company will be required to
make an offer to repurchase all
outstanding Notes at a price in cash
equal to 101% of the principal amount of
the Notes, plus any accrued and unpaid
interest to but not including the
repurchase date.
Settlement: T + 3 days; May 21, 2007
CUSIP: 000000XX0
ISIN: US912909AC20
Joint Book-Running X.X. Xxxxxx Securities Inc., Xxxxxx
Managers Xxxxxxx & Co. Incorporated and Greenwich
Capital Markets, Inc.
Ratings: Xxxxx'x: Baa3 (stable outlook)
S&P: BB+ (stable outlook)
Fitch: BBB- (stable outlook)
Note: A securities rating is not a
recommendation to buy, sell or hold
securities and may be subject to revision
or withdrawal at any time.
Pro Forma Earnings to
Fixed Charges Ratio: Three months ended Year ended
March 31, 2007 December 31, 2006
-------------- -----------------
14.00 11.85
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling X.X. Xxxxxx Securities Inc. collect
at 0-000-000-0000, Xxxxxx Xxxxxxx & Co. Incorporated toll-free at 1-866-718-1649
and Greenwich Capital Markets, Inc. at 0-000-000-0000.
UNITED STATES STEEL CORPORATION
PRICING TERM SHEET
MAY 16, 2007
$350,000,000 6.65% Senior Notes due 2037
Issuer: United States Steel Corporation
Title of Securities: 6.65% Senior Notes due 2037
Principal Amount: $350,000,000
Maturity: June 1, 2037
Coupon: 6.65%
Price: 99.405% of principal amount
Yield to maturity: 6.696%
Benchmark Treasury: 4.500% U.S. Treasury due February 15, 2036
Spread to Benchmark
Treasury: 180 basis points (1.80%)
Benchmark Treasury
Price and Yield: 93-29+; 4.896%
Interest Payment June 1 and December 1 of each year,
Dates: commencing on December 1, 2007
Interest Payment
Record Dates: May 15 and November 15 of each year
Redemption
Provisions:
Mandatory None.
Redemption:
Optional Optional redemption at any time in whole,
Redemption: or from time to time in part, at a
redemption price equal to the greater of
(i) 100% of the principal amount of the
Notes redeemed and (ii) the sum of the
present values of remaining scheduled
payments of principal and interest
(exclusive of interest accrued to the
date of redemption) on such Notes
discounted to the redemption date on a
semi-annual basis at the Treasury yield
plus 30 basis points, plus accrued
interest to the redemption date.
Change of Control If a change of control repurchase event
Repurchase Event: occurs, the Company will be required to
make an offer to repurchase all
outstanding Notes at a price in cash
equal to 101% of the principal amount of
the Notes, plus any accrued and unpaid
interest to but not including the
repurchase date.
Settlement: T + 3 days; May 21, 2007
CUSIP: 000000XX0
ISIN: US912909AD03
Joint Book-Running
Managers X.X. Xxxxxx Securities Inc., Xxxxxx
Xxxxxxx & Co. Incorporated and Banc of
America Securities LLC
Ratings: Xxxxx'x: Baa3 (stable outlook)
S&P: BB+ (stable outlook)
Fitch: BBB- (stable outlook)
Note: A securities rating is not a
recommendation to buy, sell or hold
securities and may be subject to revision
or withdrawal at any time.
Pro Forma Earnings to
Fixed Charges Ratio: Three months ended Year ended
March 31, 2007 December 31, 2006
-------------- -----------------
14.00 11.85
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling X.X. Xxxxxx Securities Inc. collect
at 0-000-000-0000, Xxxxxx Xxxxxxx & Co. Incorporated toll-free at 1-866-718-1649
and Banc of America Securities LLC toll free at 1-800-294-1322.
Annex A
Designated Subsidiaries of the Company
Transtar, Inc.
USS Portfolio Delaware, Inc.
U.S. Steel Kosice, s.r.o
U. S. Steel Receivables, LLC
Annex B
Form of Opinion of Counsel for the Company
(i) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware;
(ii) Transtar, Inc. has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
(iii) USS Portfolio Delaware, Inc. has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware;
(iv) U. S. Steel Receivables, LLC has been duly formed and is an existing
limited liability company in good standing under the laws of the State of
Delaware;
(v) The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under
the heading "Capitalization" and all outstanding shares of capital stock or
other equity interests of each subsidiary of the Company have been duly
authorized and are validly issued, fully paid and nonassessable;
(vi) The Company has the power and authority (corporate and other) to own
its properties and conduct its business as described in the Time of Sale
Information and the Prospectus; is duly qualified to do business as a foreign
entity in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification,
except where the failure to do so would not reasonably be expected to cause a
Material Adverse Effect;
(vii) The Company has full right, power and authority to execute and deliver
each of the Transaction Documents and to perform its obligations thereunder; and
all action required to be taken for the due and proper authorization, execution
and delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken;
(viii) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court having jurisdiction over the Company,
its U.S. subsidiaries or their respective properties is required for the
consummation of the transactions contemplated by the Underwriting Agreement and
the other Transaction Documents in connection with the issuance and sale of the
Securities or the consummation of the Transactions, except for (i) the order of
the Commission declaring the Registration Statement effective, which has been
obtained and is in full force and effect, and (ii) any consent, approval,
authorization, or order, or filing required pursuant to state "blue sky" laws or
foreign securities laws;
(ix) Except as described in the Time of Sale Information and the Prospectus,
there are no pending actions, suits or proceedings against or affecting the
Company, any Designated Subsidiary or any of their respective properties that,
if determined adversely to the Company or any Designated Subsidiary would
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under the Underwriting Agreement; and no such
actions, suits or proceedings are threatened;
(x) The execution, delivery and performance of the Transaction Documents,
the issuance and sale of the Securities and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated by the
Transaction Documents, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (A) the Delaware General
Corporation Law or those laws, rules and regulations of the State of
Pennsylvania and the federal laws of the United States (excluding, with respect
to federal securities law, the antifraud provisions thereof), in each case,
which, in my experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement ("Applicable Law"), (B) the
respective charters or limited liability company agreements or by-laws of the
Company and the Designated Subsidiaries (other than USSK), (C) to my knowledge
after inquiring of those employees of the Company responsible for such matters,
orders of any court, regulatory tribunal, administrative agency or other
governmental body having jurisdiction over the Company, any Designated
Subsidiary or any of their respective properties or (D) to my knowledge after
inquiring of those employees of the Company responsible for such matters, any
agreement or instrument to which the Company or any Designated Subsidiary is a
party or by which the Company or any Designated Subsidiary is bound or to which
any of the properties of the Company or any Designated Subsidiary is subject;
the Company has full power and authority to authorize, issue and sell the
Securities as contemplated by the Underwriting Agreement;
(xi) (a) The Registration Statement has become effective under the
Securities Act; (b) the Prospectus was filed with the Commission pursuant to
Rule 424(b) under the Securities Act on the date specified therein; (c) to the
best of my knowledge, no order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related
to the offering has been initiated or threatened by the Commission; (d) the
Registration Statement, as of the Effective Time, and the Prospectus, as of its
date and as of the date hereof, and each amendment or supplement thereto,
complied as to form in all material respects with the requirements of the
Securities Act; and (e) the documents incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, when
filed with the Commission, conformed in all material respects with the
requirements of the Exchange Act;
(xii) The Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act, and
constitutes a valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability
(collectively, the "Enforceability Exceptions");
(xiii) The Supplemental Indenture setting forth the terms of the Securities
in accordance with the terms of the Indenture has been duly authorized, executed
and delivered by the Company, and is enforceable according to its terms, subject
to the Enforceability Exceptions;
(xiv) The Securities have been duly authorized and when duly executed,
authenticated and issued in accordance with the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of the Underwriting
Agreement, will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture;
(xv) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(xvi) Each of the other Transaction Documents has been duly authorized by
the Company and, when executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by the Enforceability Exceptions;
(xvii) Each Transaction Document conforms in all material respects to the
description thereof contained in the Registration Statement, the Time of Sale
Information and the Prospectus;
(xviii) The descriptions in the Registration Statement, the Time of Sale
Information and Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the Registration Statement,
the Time of Sale Information or the Prospectus which are not described as
required, or of any contracts or documents of a character required to be
described in the Registration Statement, the Time of Sale Information or the
Prospectus or to be filed as exhibits to the Registration Statement which are
not described and filed as required;
(xix) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities
with the Securities registered pursuant to the Registration Statement or with
any securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act;
(xx) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Time of Sale Information and the Prospectus, will not be an "investment company"
or an entity "controlled" by an "investment company" within the meaning of the
Investment Company Act;
(xxi) Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Company as described in the
Registration Statement, the Time of Sale Information and the Prospectus will
violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors;
(xxii) USSK has been duly organized and is an existing limited liability
company in good standing under the laws of the Slovak Republic, with power and
authority (corporate and other) to own its properties and conduct its business
as described in Time of the Sale Information and the Prospectus; and USSK is
duly qualified to do business as a foreign limited liability company in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification;
(xxiii) Each of the Significant Slovak Subsidiaries (as hereinafter defined)
has been duly organized and is an existing limited liability company in good
standing under the laws of the Slovak Republic, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Time of Sale Information and the Prospectus; and each
Significant Slovak Subsidiary is in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification; all of the issued and outstanding equity interests of each
Significant Slovak Subsidiary have been duly authorized and are validly issued,
fully paid and nonassessable; and the equity interests of each Significant
Slovak Subsidiary owned by USSK, directly or through subsidiaries, are owned
free from liens, encumbrances and defects. A "Significant Slovak Subsidiary" is
any subsidiary of USSK that is a "significant subsidiary" (as such term is
defined in Rule 1-02 of Regulation S-X, substituting 5% thresholds for the 10%
thresholds throughout such definition) of USSK;
(xxiv) All outstanding equity interests of USSK have been duly authorized and
are validly issued, fully paid and nonassessable;
(xxv) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court having jurisdiction over USSK, its
subsidiaries or their respective properties in the Slovak Republic or any
political subdivision thereof is required for the consummation of the
transactions contemplated by the Underwriting Agreement in connection with the
issuance and sale of the Securities by the Company;
(xxvi) The execution, delivery and performance of the Transaction Documents,
the issuance and sale of the Securities and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated by the
Transaction Documents, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (A) any statute or any
rule or regulation in the Slovak Republic or any political subdivision thereof,
(B) the respective organizational documents of USSK and the Significant Slovak
Subsidiaries; (C) orders of any court, regulatory tribunal, administrative
agency or other governmental body having jurisdiction over USSK, any Significant
Slovak Subsidiary or any of their respective properties or (D) any agreement or
instrument to which USSK or any Significant Slovak Subsidiary is a party or by
which USSK or any Significant Slovak Subsidiary is bound or to which any of the
properties of USSK or any Significant Slovak Subsidiary is subject; and
(xxvii) The descriptions in the Registration Statement, the Time of Sale
Information and the Prospectus of statutes, legal and governmental proceedings
in the Slovak Republic or any political subdivision thereof and contracts and
other documents relating to USSK are accurate and fairly present the information
required to be shown; and, after inquiring of those employees of the Company
responsible for such matters, such counsel does not know of any legal or
governmental proceedings in the Slovak Republic or any political subdivision
thereof required to be described in the Registration Statement, the Time of Sale
Information or the Prospectus which are not described as required or of any
contracts or documents relating to USSK of a character required to be described
in the Registration Statement, the Time of Sale Information or the Prospectus or
to be filed as exhibits to the Registration Statement which are not described
and filed as required.
Such counsel shall also state that he has participated in conferences with
representatives of the Company and with representatives of its independent
accountants at which conferences the contents of the Registration Statement, the
Time of Sale Information and the Prospectus and any amendment and supplement
thereto and related matters were discussed and, although such counsel assumes no
responsibility for the accuracy, completeness or fairness of the Registration
Statement, the Time of Sale Information and the Prospectus and any amendment or
supplement thereto (except as expressly provided), nothing has come to the
attention of such counsel to cause such counsel to believe that (i) as of the
applicable Effective Time, the Registration Statement or any amendment thereto,
including in each case any document incorporated or deemed incorporated by
reference therein, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, (ii) as of the Time of Sale, the
Time of Sale Information, including in each case any document incorporated or
deemed incorporated by reference therein, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; or (iii) as of its
date and as of the Closing Date, the Prospectus or any supplement or amendment
thereto, including in each case any document incorporated or deemed incorporated
by reference therein, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than the
financial statements and other financial information contained therein, as to
which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The foregoing opinion shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
Annex C
Form of Opinion of Outside Counsel for the Company
(i) The statements made in the Time of Sale Information and the Prospectus
under the captions "Description of the notes" and "Description of the debt
securities", insofar as they purport to constitute summaries of the terms of the
Securities, respectively, constitute an accurate summary of the terms of the
Securities in all material respects, and the statements in the Time of Sale
Information and the Prospectus under the heading "Certain United States federal
income tax considerations", insofar as such statements purport to describe
certain federal income tax laws and regulations of the United States, are
accurate in all material respects;
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The foregoing opinion shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
