EXHIBIT 10.16(b)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
August 1, 2003, by and among Wheeling-Pittsburgh Corporation, a Delaware
corporation (the "Company"), and WesBanco Bank, Inc., solely in its capacity as
trustee (the "Trustee") under the VEBA Trust (as defined below), and is agreed
to by U.S. Trust Company, N.A., in its capacity as independent fiduciary (the
"Independent Fiduciary") of the Retiree Plan (as defined below) with respect to
Discretionary Management (as defined below) of the Company's securities held by
the VEBA Trust.
PREAMBLE
WHEREAS, pursuant to (a) the Company's Third Amended Joint Plan of
Reorganization and Third Amended Disclosure Statement Pursuant to Section 1125
of the Bankruptcy Code for Debtor's Third Amended Joint Plan of Reorganization,
each dated May 19, 2003 (the "Reorganization Plan"), and (b) that certain
Memorandum among the Company, Wheeling-Pittsburgh Steel Corporation and United
Steelworkers of America, AFL-CIO-CLC entered into connection with the
Reorganization Plan, as of the Effective Date (as defined in the Reorganization
Plan) the Company is to contribute to the VEBA Trust 4,000,000 shares (the
"Initial Shares") of the Company's common stock, par value $0.01 per share (the
"Common Stock"); and
WHEREAS, the parties hereto agree that it is in the best interests of
the Company and the Retiree Plan that sales of all shares of Common Stock held
by the VEBA Trust occur in an orderly manner;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. In addition to those terms defined elsewhere in this
Agreement, the following terms as used herein shall have the following meanings:
"Commission" shall mean the U.S. Securities and Exchange
Commission.
A "Contract Year" shall mean the one-year period commencing on
the Effective Date of and each subsequent one-year period commencing on
an anniversary of the Effective Date.
"Discretionary Management" shall mean the extent to which the
Independent Fiduciary is permitted to exercise authority and control
over the Common Stock held by the VEBA Trust under the Stock Transfer
Restriction and Voting Restriction entered into on August 1, 2003
between the Company and WesBanco Bank, Inc., and agreed to by the
Independent Fiduciary (the "Stock Transfer Restriction and Voting
Agreement"), under the engagement letter agreement of August 1, 2003
between the Company and the Independent Fiduciary, and under this
Agreement.
"Filing Period" shall mean, (a) with respect to a registration
statement to be filed on Form S-3 (or any applicable successor form),
not later than 30 days after receipt by the Company of a request for
such registration statement and (b) with respect to a registration
statement to be filed other than on Form S-3 (or any applicable
successor form), not later than 60 days after receipt by the Company of
a request for such registration statement.
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"Person" shall mean an individual, partnership, corporation,
limited liability company, association, trust, joint venture,
unincorporated organization, and any government, governmental
department or agency or political subdivision thereof.
"Registrable Securities" shall mean any or all of the shares
of Common Stock held by the Trustee for the benefit of the VEBA Trust,
including but not limited to the Initial Shares.
"Required Period" shall mean, with respect to any given
registration statement, (a) at any time during the first four Contract
Years, 210 days following the first day of effectiveness of such
registration statement and (b) at any time following the last day of
the fourth Contract Year, 120 days following the first day of
effectiveness of such registration statement.
"Retiree Plan" means the Wheeling-Pittsburgh Steel Corporation
Retiree Benefits Plan.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act and any successor or substitute rule, law or provision.
"Securities Act" shall mean the U.S. Securities Act of 1933,
as amended.
"VEBA Trust" means the trust that is a part of the Retiree
Plan.
2. DEMAND REGISTRATION RIGHT.
2.1. Registration Upon Request.
Subject to the provisions of Sections 2.3 and 4, at any time and from
time to time, the Trustee may (and, if so directed by the Independent Fiduciary,
shall) deliver to the Company written notice of a request that the Company cause
Registrable Securities to be registered for resale under the Securities Act
pursuant to this Section 2.1 (such registration under this Section 2.1 being
referred to as a "Demand Registration"), which written notice shall state (a)
the then current name and address of the Trustee, (b) the number of Registrable
Securities to be so registered and (c) the total number of shares of Common
Stock then held by the Trustee. Thereafter, subject to the conditions,
limitations and provisions set forth below in Sections 2.3, 2.5, 4 and 5, the
Company shall promptly prepare and file, and use its reasonable best efforts to
prosecute to effectiveness, an appropriate filing with the Commission of a
registration statement covering, in the aggregate, all of those Registrable
Securities with respect to which registration under the Securities Act has been
so requested by the Trustee.
2.2. Period of Effectiveness. A registration requested pursuant to
Section 2.1 hereof shall not count as a Demand Registration to which the Trustee
is entitled hereunder unless, in the case of an offering that is not an
underwritten offering contemplated by Section 2.4, such registration statement
is declared effective and remains effective for at least the Required Period (or
for such shorter period as the Trustee may agree). The Company shall be
permitted to withdraw any registration statement filed pursuant to Section 2.1
if, at any time, all of the Registrable Securities registered for resale
thereunder have been sold pursuant to such registration statement or otherwise
cease to be Registered Securities.
2.3. Limitation on Registrations. With respect to each of the first two
Contract Years, the Company shall not be required to effect more than one
registration pursuant to Section 2.1. With respect to each Contract Year
following the second Contract Year, the Company shall not be required to effect
more than two registrations pursuant to Section 2.1, no more than one of which
registrations in each such Contract Year may be an underwritten offering.
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2.4. Selection of Underwriters. If a registration pursuant to Section
2.1 involves an underwritten offering by the Trustee, the underwriter or
underwriters thereof shall be selected, after consultation with the Company, by
the Trustee or the Independent Fiduciary, provided that such underwriter or
underwriters shall be acceptable to the Company. The Company covenants that it
shall not unreasonably withhold its acceptance of any such underwriter or
underwriters. In connection with any such underwritten offering, the Company
agrees to enter into an underwriting agreement with the underwriter parties
thereto and the Trustee, in customary form reasonably satisfactory to the
Company.
2.5. Additional Securities; Priority of Demand Registrations. Subject
to the provisions set forth below in this Section 2.5, the Company may include
in any registration statement filed pursuant to Section 2.1 additional
securities for sale for its own account or for the account of any other Person.
If a registration pursuant to Section 2.1 involves an underwritten offering, and
the managing underwriter advises the Company in writing that, in its opinion,
the number of shares of Common Stock requested to be included in such
registration exceeds the number which can be sold in such offering, the Company
will include in such registration, to the extent of the number of shares of
Common Stock which the Company is so advised can be sold in such offering, (i)
first, the number of Registrable Securities requested to be included in such
registration pursuant to Section 2.1, and (ii) second, the other securities
proposed to be included in such registration, in accordance with the priorities,
if any, then existing among the Company and the holders of such other
securities.
3. PIGGYBACK REGISTRATION RIGHTS.
3.1. Registration. If at any time the Company proposes to register any
of its Common Stock under the Securities Act, whether for its own account or for
the account of any stockholder of the Company (but excluding in all cases any
registrations to be effected on Forms S-4 or S-8 or any applicable successor
Forms), the Company shall, each such time, give to the Trustee and the
Independent Fiduciary written notice of its intent to do so. Upon the written
request of the Trustee or the Independent Fiduciary given within twenty days
after the giving of any such notice by the Company, the Company shall use its
reasonable best efforts to cause to be included in such registration the
Registrable Securities requested to be so registered, subject to Sections 3.2, 4
and 5; provided that the Trustee agrees to sell such Registrable Securities in
the same manner and on the same terms and conditions as the other shares of
Common Stock which the Company purposes to register.
3.2. Priority of the Company Shares. If a registration pursuant to
Section 3.1 involves an underwritten offering, and the managing underwriter
advises the Company in writing that, in its opinion, the number of shares of
Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company shall be required to include in
such registration only the number of shares of Common Stock requested to be
registered by the Trustee and any other stockholders exercising piggyback
registration rights as the managing underwriter believes will not (without any
reduction in the number of shares to be sold for the account of the Company and
any stockholder(s) exercising demand registration rights) jeopardize the success
of the offering, which shares of Common Stock shall be included in such
registration on a pro rata basis, determined in accordance with the number of
shares of Common Stock requested to be so registered by the Trustee and such
other stockholders, if any.
4. CONTRACTUAL LIMITATIONS. Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not be required to register the
resale by the Trustee of Registrable Securities in excess of the number of
Registrable Securities that the Trustee is permitted to sell pursuant to that
certain Stock Transfer Restriction and Voting Agreement.
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5. DEFERRAL. Notwithstanding anything to the contrary contained in this
Agreement, the obligation of the Company to file a registration statement
pursuant to Section 2 shall be deferred for a period not to exceed one ninety
(90) day period in any twelve (12) month period if the Company, in the good
faith judgment of its board of directors, reasonably believes that the filing
thereof at the time requested would materially adversely affect a pending or
proposed public offering of securities, or an acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction, or any
negotiations, discussions or pending proposals with respect thereto. The Company
shall, at such time as the reason for the deferral no longer exists, use its
reasonable best efforts to effect promptly the registration under the Securities
Act of the Registrable Securities covered by the deferred registration statement
in accordance with Section 2, and such registration shall not be further
deferred pursuant to this Section 5.
6. ADDITIONAL OBLIGATIONS OF THE COMPANY.
If the Company is required under Section 2 or 3 to use its reasonable
best efforts to effect the registration of any of the Registrable Securities,
the Company shall promptly:
(a) Prepare and file with the Commission, within the
applicable Filing Period, a registration statement with respect to such
Registrable Securities, on such form as the Company reasonably
determines to be appropriate, and use its reasonable best efforts to
cause such registration statement to become and remain effective as
soon as reasonably practicable after such filing; provided that the
Company shall not be required to use its reasonable best efforts to
cause such registration statement to become effective sooner than 90
days after the last date on which Registrable Securities have been sold
pursuant to an earlier filed registration statement;
(b) Notify the Trustee and the Independent Fiduciary of any
stop order issued or threatened by the Commission and take all
reasonable action required to prevent the entry of such stop order or
to remove it if entered;
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement;
(d) Furnish to the Trustee and the Independent Fiduciary,
prior to filing any registration statement hereunder or any supplement
or amendment thereto, such number of copies of such registration
statement, each amendment and supplement thereto (in each case,
including all exhibits thereto), the prospectus (including each
preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as the Trustee or the
Independent Fiduciary may reasonably request in order to facilitate the
disposition of such Registrable Securities;
(e) Use its best efforts to register and qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as the Trustee or the Independent Fiduciary may
reasonably request, and to continue such qualification in effect in
each such jurisdiction for as long as permissible pursuant to the laws
of such jurisdiction, or for as long as any such seller reasonably
requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which
may be reasonably necessary or advisable to enable the Trustee to
consummate the disposition in such jurisdictions of the Registrable
Securities; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions, and provided further that (anything in Section
8 to the contrary notwithstanding with respect to the
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bearing of expenses) if any jurisdiction in which the securities shall
be qualified shall require that expenses incurred in connection with
the qualification therein of the securities be borne by selling
shareholders, then such shareholders shall, to the extent required by
such jurisdiction, pay its pro rata share of selling expenses;
(f) Use its reasonable best efforts to obtain all other
approvals, covenants, exemptions or authorizations from such
governmental agencies or authorities as may be necessary to enable the
Trustee to consummate the disposition of such Registrable Securities;
(g) Immediately notify the Trustee and the Independent
Fiduciary, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event
of which the Company has knowledge as a result of which the prospectus
contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they
were made; and promptly (but in no event later than 30 days from the
date of delivery of such notice) prepare and furnish to it a reasonable
number of copies of a supplement to or an amendment of such prospectus
as may be necessary so that such prospectus will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made;
provided, that after such notification and until such supplement or
amendment has been so delivered, no such holder will deliver or
otherwise use the original prospectus;
(h) Enter into and perform customary agreements and take such
other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities;
(i) Make available for inspection, on a confidential basis and
after reasonable prior notice by the Trustee or the Independent
Fiduciary, any managing underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant
or other agent retained by the Trustee, the Independent Fiduciary or
any managing underwriter (each, an "Inspector") all financial and other
records, pertinent corporate documents and properties of the Company
and any subsidiaries thereof as may be in existence at such time as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's and any subsidiaries'
officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably
requested by any such Inspector in connection with such registration
statement;
(j) Obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters, as
the managing underwriter, as applicable, may reasonably request;
(k) Furnish, at the request of the Trustee or the Independent
Fiduciary on the date such securities are delivered to the underwriters
for sale pursuant to such registration or, if such securities are not
being sold through underwriters, on the date the registration statement
with respect to such securities becomes effective, an opinion, dated
such date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the Trustee
and the Independent Fiduciary, covering such legal matters relating to
the registration in respect of which such opinion is being given as the
Trustee or the Independent Fiduciary may reasonably request and as are
customarily included in such opinions;
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(l) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but no later than 15 months after the effective date of the
registration statement, an earnings statement covering a period of 12
months beginning after the effective date of the registration
statement, in a manner which satisfies the provisions of Section 11(a)
of the Securities Act;
(m) Keep the Trustee and the Independent Fiduciary advised as
to the initiation and progress of any registration under Section 2
hereunder;
(n) Provide officers' certificates and other customary closing
documents; and
(o) Use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated
hereby, it being understood that the Company shall not be required to
cause any of its officers or employees to participate in any "road
show" or similar marketing effort being conducted with respect to an
underwritten Demand Registration including Registrable Securities;
provided, however, that in connection with any underwritten Demand
Registration with respect to Registrable Securities constituting 15% or
more of the total number of shares of Common Stock outstanding, upon
reasonable advance notice, the Company shall use reasonable best
efforts to cause to participate in any such "road show" or similar
marketing effort, for up to five consecutive business days, such
officers or employees of the Company as are reasonably deemed required
by the managing underwriter in order to effectively conduct any such
"road show" or similar marketing effort.
7. FURNISH INFORMATION.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that the Trustee requesting
registration thereof shall furnish to the Company such information regarding the
Trustee, the Registrable Securities held by the Trustee, the proposed plan of
distribution of such Registrable Securities, and any other information as the
Company shall reasonably request and as shall be required in order to effect any
such registration by the Company.
8. EXPENSES.
All expenses incurred by the Company in connection with any
registration pursuant to this Agreement, including without limitation any
underwriting discounts and commissions relating to shares being registered for
the account of the Company, all registration and qualification fees, printing
costs, fees and disbursements of counsel for the Company and any of its
independent public accountants and any other accounting and legal fees, charges
and expenses incurred by the Company (including legal fees and other costs and
expenses incurred in connection with compliance with state securities or blue
sky laws), and the reasonable fees, charges and expenses of any special experts
retained by the Company in connection with any registration pursuant to the
terms of this Agreement, regardless of whether the registration statement filed
in connection with such registration is declared effective, shall be paid by the
Company. The Company shall also pay the reasonable fees, charges and
disbursements of a single counsel to the Trustee (not to exceed $25000) and a
single counsel to the Independent Fiduciary (not to exceed $50,000)
participating in any requested registration of Registrable Securities pursuant
to Section 2. All of the expenses described in this Section 8 are referred to in
this Agreement as "Registration Expenses." Notwithstanding the foregoing
provisions of this Section 8, in connection with any registration hereunder, the
Trustee shall cause the Trust to pay all underwriting discounts and commissions,
all other expenses of the Trustee and of the Independent Fiduciary, including
without limitation any underwriting discounts and commissions relating to
Registrable Securities and the costs and fees of counsel (except as set forth in
the
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second preceding sentence) and experts retained by the Trustee or by the
Independent Fiduciary, and any capital gains, income or transfer taxes, if any,
attributable to the sale of such Registrable Securities.
9. INDEMNIFICATION.
9.1. Indemnification. In the event that any Registrable Securities are
included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the Trustee, any underwriter (as defined in the
Securities Act) for the Company, and each officer, director, partner,
employee and agent of the Trustee or the Trust or such underwriter and
each Person, if any, who controls any of the foregoing Persons within
the meaning of the Securities Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they may become
subject under the Securities Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue or alleged untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto or any document incorporated by
reference in any of the foregoing, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and will reimburse the Trustee, such underwriter or such
other indemnified Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 9.1(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall
the Company be liable in any such case for any such loss, damage,
liability or action to the extent that it primarily arises out of or is
based upon an untrue statement or alleged untrue statement or omission
made in connection with such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by the Trustee,
any underwriter for the Trustee or other indemnified Person;
(b) To the extent permitted by the VEBA Trust and applicable
law, the Trustee will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed such registration
statement, each Person, if any, who controls the Company within the
meaning of the Securities Act, and any underwriter for the Company
(within the meaning of the Securities Act) against any and all losses,
claims, damages or liabilities to which the Company or any such
director, officer, controlling Person, or underwriter may become
subject, under the Securities Act or otherwise, only to the extent that
as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in such registration
statement, including any preliminary prospectus contained therein or
any amendments or supplements thereto or any document incorporated by
reference in any of the foregoing, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
such registration statement, preliminary prospectus, final prospectus,
or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by the Trustee expressly
for use in connection with such registration; and the Trustee will
reimburse any legal or other expenses reasonably incurred by the
Company or any
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such director, officer, controlling Person, or underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the liability of
the Trustee under this Section 9.1(b) shall be limited to the amounts
of net proceeds received by the VEBA Trust in the offering giving rise
to such liability; further provided, that the indemnity agreement
contained in this Section 9.1(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Trustee against which
the request for indemnity is being made (which consent shall not be
unreasonably withheld); and
(c) Promptly after receipt by an indemnified party under this
Section 9.1 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 9.1, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other
indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the parties. The
failure to notify an indemnifying party promptly of the commencement of
any such action shall relieve such indemnifying party of any liability
to the indemnified party under this Section 9.1 only if and to the
extent such failure to promptly notify was prejudicial to its ability
to defend such action, and the omission so to notify the indemnifying
party will not relieve the indemnifying party of any liability which he
may have to any indemnified party otherwise other than under this
Section 9.1. The indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the indemnified
party unless (i) the indemnifying party agrees to pay the same, (ii)
the indemnifying party fails to assume the defense of such action with
counsel satisfactory to the indemnified party in its reasonable
judgment, or (iii) the named parties to any such action (including any
impleaded parties) have been advised by such counsel that
representation of such indemnified party and the indemnifying party by
the same counsel would be inappropriate under applicable standards of
professional conduct; provided, however, that the indemnifying party
shall only have to pay the fees and expenses of one lead firm of
counsel and one local counsel in each applicable jurisdiction for all
indemnified parties. In either of such cases the indemnifying party
shall not have the right to assume the defense of such action on behalf
of such indemnified party. No indemnifying party shall be liable for
any settlement entered into without its written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(A) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include
a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party. The rights accorded to
any indemnified party hereunder shall be in addition to any rights that
such indemnified party may have at common law, by separate agreement or
otherwise.
(d) If the indemnification provided for in Section 9(a) from
the indemnifying party is unavailable to an indemnified party in
respect of any losses, claims, damages, expenses or other liabilities
referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, expenses or other liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions which resulted in such
losses, claims, damages, expenses or other liabilities, as well as any
other
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relevant equitable considerations. The relative faults of such
indemnifying party and indemnified party shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, was made by, or
relates to information supplied by, such indemnifying party or
indemnified party, and the indemnifying party's and indemnified party's
relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party
as a result of the losses, claims, damages, expenses or other
liabilities referred to above shall be deemed to include, subject to
the limitations set forth in Sections 9(a), 9(b) and 9(c), any legal or
other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution pursuant to this
Section 9(d).
9.2. Override. Notwithstanding anything in this Section 9 to the
contrary, (a) if, in connection with an underwritten public offering of the
Registrable Securities, the Company, the Trustee and the underwriters enter into
an underwriting or purchase agreement relating to such offering which contains
provisions covering indemnification as between the Company and such holder, then
the indemnification provision of this Section 9 shall be deemed inoperative for
purposes of such offering, and (b) the terms of the Company's indemnification
obligations in Section 9.1 shall not apply to the Independent Fiduciary, which
shall be entitled to indemnification by the Company pursuant to the engagement
letter dated August 1, 2003 between the Company and the Independent Fiduciary.
10. LISTING; RULE 144; OTHER EXEMPTIONS.
Following registration of any Registrable Securities under the Exchange
Act, the Company covenants that it shall file any reports required to be filed
by it under the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and that it shall take such further action as the Trustee
or the Independent Fiduciary may reasonably request (including, but not limited
to, providing any information necessary to comply with Rules 144 and 144A (if
available with respect to resales of the Registrable Securities) under the
Securities Act), all to the extent required from time to time to enable the
Trustee to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 or Rule
144A (if available with respect to resales of the Registrable Securities) under
the Securities Act, as such rules may be amended from time to time, or (ii) any
other rules or regulations now existing or hereafter adopted by the Commission.
11. GENERAL.
11.1. Assignment. None of the parties to this Agreement shall assign or
delegate any of their respective rights or obligations under this Agreement
without the prior written consent of each of the other parties hereto. The
parties intend that the terms of this Agreement apply to any successor to either
the Trustee or the Independent Fiduciary of the VEBA Trust and agree to use
their best reasonable efforts to cause any such successor to agree in writing to
become a party to this Agreement.
11.2. No Inconsistent Agreements; Other Registration Rights. The
Company shall not enter into any agreement with respect to its securities that
is inconsistent with the rights of the VEBA Trust in this Agreement, other than
any lock-up agreement with the underwriters in connection with an underwritten
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offering pursuant to which the Company agrees, for a period not in excess of 90
days (not in excess of 180 days with respect to securities being offered for
sale by the Company) not to register for sale, and not to sell or otherwise
dispose of, Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
11.3. Remedies. The Trustee, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, shall be entitled to
specific performance of the rights of the VEBA Trust under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
11.4. Survival. The rights and obligations of the parties hereto set
forth herein shall survive indefinitely, unless and until, by their respective
terms, they are no longer applicable.
11.5. Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto,
other than the Stock Transfer Restriction and Voting Agreement.
11.6. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
(i) If to the Company, to:
Wheeling-Pittsburgh Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
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(ii) If to the Trustee, to:
WesBanco Bank, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust
with a copy to:
Phillips, Gardill, Xxxxxx & Xxxxxxxx, PLLC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
(iii) If to the Independent Fiduciary, to:
U.S Trust Company, N.A.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier: 000-000-0000
Attention: Xxxxxx Xxxxxxxx,
Managing Director
with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) when
delivered in hand to the party to which it was directed, (ii) if sent by telex,
telecopier, facsimile machine or telegraph and properly addressed in accordance
with the foregoing provisions of this Section 11.6, when received by the
addressee, (iii) if sent by commercial courier guaranteeing next business day
delivery, on the business day following the date of delivery to such courier, or
(iii) if sent by first-class mail, postage prepaid, and properly addressed in
accordance with the foregoing provisions of this Section 11.6, (A) when received
by the addressee, or (B) on the third business day following the day of dispatch
thereof, whichever of (A) or (B) shall be the earlier.
11.7. Amendments and Waivers. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in
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a particular instance and either retrospectively or prospectively), with, but
only with, the written consent of each of the other parties hereto.
11.8. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.9. No Waiver of Future Breach. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof. No assent, express or implied, by any party
hereto to any breach of or default in any agreement or condition herein
contained on the part of any other party hereto shall constitute a waiver of or
assent to any succeeding breach of or default in the same or any other agreement
or condition hereof by such other party.
11.10. No Implied Rights or Remedies; Third Party Beneficiaries. Except
as otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
or by reason of this Agreement. Except as otherwise expressly provided in this
Agreement, there are no intended third party beneficiaries under or by reason of
this Agreement.
11.11. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
11.12. Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
11.13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, excluding choice of law
rules thereof.
11.14. Jurisdiction. Each party to this Agreement hereby irrevocably
agrees that any legal action or proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby may be brought
in the courts of the District of Columbia or of the United States District Court
for the District of Columbia and hereby expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and expressly
waives any claim of improper venue and any claim that such courts are an
inconvenient forum. Each party hereby irrevocably consents to the service of
process of any of the aforementioned courts in any such suit, action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth in Section 11.6, such service to
become effective ten days after such mailing.
11.15. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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IN WITNESS WHEREOF, this Registration Rights Agreement has been
executed under seal by the parties hereto as of the day and year first above
written.
WHEELING-PITTSBURGH CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President, Secretary and Treasurer
WESBANCO BANK, INC.
solely in its capacity as Trustee under the VEBA Trust and
not individually
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Trust Officer
ASSENT AND ACKNOWLEDGEMENT
The undersigned, by assenting to and acknowledging this Agreement, agrees not to
direct or otherwise cause the Trustee to take any action in violation of the
terms of this Agreement:
U.S. TRUST COMPANY, N.A.,
in its capacity as independent fiduciary of the Retiree Plan in respect of
discretionary actions concerning any of the Company's securities held by the
VEBA Trust
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
