EXHIBIT 10.1
CLOSE CORPORATION
AND SHAREHOLDERS' AGREEMENT
BETWEEN
XXXX XXXX TINPLATE AMERICA CORP.
AND
NITTETSU SHOJI AMERICA, INC.
AND
WHEELING-PITTSBURGH CORPORATION
AND
OHIO COATINGS COMPANY
INDEX
Page
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ARTICLE ONE Definitions.......................................................................... 2
Section 1.01. Defined Terms............................................................ 2
Section 1.02. Articles................................................................. 2
Section 1.03. Change in Control........................................................ 2
Section 1.04. Code of Regulations...................................................... 2
Section 1.05. Impasse.................................................................. 2
Section 1.06. Fair Market Value........................................................ 3
Section 1.07. Shareholder.............................................................. 3
Section 1.08. Share.................................................................... 3
Section 1.09. Common Share............................................................. 3
Section 1.10. Preferred Share.......................................................... 3
Section 1.11. Substrate................................................................ 3
Section 1.12. Toll Processing.......................................................... 4
Section 1.13. Raw Materials Supply Agreement........................................... 4
Section 1.14. Start-Up Date............................................................ 4
Section 1.15. Wheeling-Pittsburgh...................................................... 4
Section 1.16. Out-of-Pocket Expenses................................................... 4
ARTICLE TWO Close Corporation Agreement......................................................... 4
Section 2.01. Close Corporation Agreement.............................................. 4
ARTICLE THREE Corporate Governance.............................................................. 5
Section 3.01. Shareholders' Authority.................................................. 5
Section 3.02. Directors' Authority..................................................... 5
Section 3.03. Election and Number of Directors......................................... 5
Section 3.04. Selection of Officers and Authority of Officers.......................... 6
Section 3.05. Director Authority and Major Corporate Decisions......................... 6
Section 3.06. Effect of Bankruptcy..................................................... 9
ARTICLE FOUR Agreements Concerning Construction, Development, Operation
and Funding of the Coating Company................................................. 9
Section 4.01. Funding and Contribution of Land Equipment, etc.......................... 9
Section 4.02. Guaranty and Other Securitization of Loans and Financing................. 10
Section 4.03. Design of Line, Provision of Expertise, Purchase of Equipment, Etc....... 11
Section 4.04. Construction of the Facility............................................. 11
ARTICLE FIVE Restrictions on Transfer, Issuance or Repurchase of Shares......................... 11
Section 5.01. Shareholder Transfer Restrictions........................................ 11
Section 5.02. Issuance Restriction on the Coating Company.............................. 12
Section 5.03. Repurchase Restrictions.................................................. 12
Section 5.04. Reasonable Restriction................................................... 12
Section 5.05. Unauthorized Transfers are Null and Void................................. 12
ARTICLE SIX Share Purchase Option After a Change in Control, Buyout Offer
After an Impasse, and Preferred Share Buyback.................................................... 13
Section 6.01. Notice of Change in Control.............................................. 13
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Section 6.02. Purchase Option After a Change in Control................................ 13
Section 6.03. Buyout Offer After an Impasse............................................ 13
Section 6.04. Buyback of Preferred Shares.............................................. 13
Section 6.05. Payment Term............................................................. 14
Section 6.06. Closing.................................................................. 14
ARTICLE SEVEN Purchase Price.................................................................... 14
Section 7.01. Purchase Price........................................................... 14
Section 7.02. Books and Records........................................................ 14
ARTICLE EIGHT Payment for Shares................................................................ 15
Section 8.01. Payment Terms............................................................ 15
ARTICLE NINE Securities Law Restrictions and Provisions......................................... 15
Section 9.01. Restrictive Legend....................................................... 15
Section 9.02. Exception to Legend Requirement.......................................... 16
Section 9.03. Notice of Proposed Transfer.............................................. 16
ARTICLE TEN Voting of Shares Subject to Purchase Rights......................................... 17
Section 10.01. Voting of Shares Subject to Purchase Rights............................. 17
ARTICLE ELEVEN Miscellaneous..................................................................... 17
Section 11.01. Financial Information.................................................... 17
Section 11.02. Additional Information................................................... 18
Section 11.03. Notices.................................................................. 19
Section 11.04. Successors, Assigns, etc................................................. 20
Section 11.05. Governing Law............................................................ 20
Section 11.06. Waiver................................................................... 20
Section 11.07. Counterparts............................................................. 20
Section 11.08. Tolling of Time.......................................................... 20
Section 11.09. Amendment or Termination of this Agreement; Action by Shareholders....... 21
Section 11.10. Entire Agreement......................................................... 21
Section 11.11. Provisions Severable..................................................... 21
Section 11.12. Effect of Invalidation and Termination................................... 21
Section 11.13. Pronouns................................................................. 22
Section 11.14. Captions................................................................. 22
Section 11.15. Exhibits Incorporated by Reference....................................... 22
Section 11.16. Mandatory Arbitration.................................................... 22
Section 11.17. Approval of Agreement.................................................... 23
EXHIBITS
4.01 Description of Non-Cash Contributions
4.03 Description of Product Ranges
SCHEDULES
A. Initial Equity Contributions
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CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
This Close Corporation and Shareholder's Agreement (the "Agreement")
made to be effective as of the 24TH day of MARCH, 1994, by and among Xxxx Xxxx
Tinplate America Corp. ("Xxxx Xxxx America"), a California corporation,
Wheeling-Pittsburgh Corporation ("Wheeling-Pittsburgh"), a Delaware corporation,
Nittetsu Shoji America, Inc. ("Nittetsu"), a California corporation, and Ohio
Coatings Company ("Coating Company"), an Ohio corporation.
RECITALS:
(A) The Shareholders own all 100% of the issued and outstanding
Common and Preferred Shares of the Coating Company and are its only
Shareholders. Xxxx Xxxx America owns 600 shares of common, Wheeling-Pittsburgh
owns 600 shares of common and Nittetsu owns 300 preferred shares.
(B) The Shareholders desire to enter into an agreement regulating
certain aspects of (i) the internal affairs of the Coating Company, (ii) the
operations of the Coating Company and (iii) the relations among the
Shareholders, directors and officers of the Coating Company and each other
person who may thereafter become the holder of Shares of the Coating Company.
(C) The Shareholders and the Coating Company further desire to
enter into an agreement in respect of the issuance, sale, transfer,
distribution, encumbrance or other distribution of Shares of the Coating
Company.
NOW, THEREFORE, in consideration of the premises and of their mutual
covenants set forth hereinafter, and subject to the fulfillment of the remaining
terms and conditions precedent set forth in the Letter of Intent dated June 21,
1994, the parties hereto make the following agreement, intending to be legally
bound thereby.
ARTICLE ONE
Definitions
Section 1.01. Defined Terms. Each term with the initial letter
capitalized in this Agreement shall have the meaning specified herein, when used
in this Agreement, including the exhibits and schedules hereto.
Section 1.02. Articles. "Articles" means the Articles of Incorporation
of the Coating Company as in effect from time to time.
Section 1.03. Change in Control. "Change in Control" means, with
respect to Wheeling-Pittsburgh, the transfer to persons other than a holding
company of a majority of the capital stock of Wheeling-Pittsburgh Steel
Corporation or any transfer of substantially all of the assets of
Wheeling-Pittsburgh Steel Corporation, and means, with respect to Xxxx Xxxx
America or its parent, Xxxx Xxxx Tinplate Ind. Co., Ltd. ("Xxxx Xxxx"), the
transfer to persons who are not immediate members of the Xxxx family of a
majority of the capital stock of Xxxx Xxxx, any transfer of substantially all of
the assets of Xxxx Xxxx, or a change in ownership of Xxxx Xxxx America.
Section 1.04. Code of Regulations. "Regulations" means the Code of
Regulations of the Coating Company as in effect from time to time.
Section 1.05. Impasse. "Impasse" means the inability of Xxxx Xxxx
America and Wheeling-Pittsburgh to agree on a Major Corporate Decision as
contemplated by Section 3.05(C) after the procedures set forth in this Section
1.05 have been exhausted:
A If Wheeling-Pittsburgh and Xxxx Xxxx America disagree on a
Major Corporate Decision in the Coating Company's business, either may give
notice to the other that it believes that an Impasse is possible, whereupon
Wheeling-Pittsburgh and Xxxx Xxxx shall through their designees negotiate in
good faith, for a period of thirty (30) days from the date such notice was
given, a resolution of their disagreement.
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B If the disagreement has not been resolved within such thirty
(30) day period, then either:
(1) Wheeling-Pittsburgh and Xxxx Xxxx America shall agree to defer
the decision giving rise to the disagreement for a fixed period of time and
extend (if necessary) the Raw Materials Supply Agreement or other long term
agreements in which event no Impasse shall be deemed to have occurred; or
(2) Wheeling-Pittsburgh and Xxxx Xxxx America shall select an
independent mediator and attempt to resolve the disagreement through mediation.
If the disagreement has not been resolved within seventy-five (75) days after
notice was given under Section 1.05(A), an Impasse shall be deemed to have
occurred.
Section 1.06. Fair Market Value. "Fair Market Value" means a value or
price negotiated at arm's length between the affected parties. If the parties
cannot agree on a Fair Market Value for purposes of Sections 6.02 and 6.03, then
it shall be determined by a certified appraiser selected by the parties and, if
the parties cannot agree, then by the Arbitrator.
Section 1.07. Shareholder. "Shareholder" means Xxxx Xxxx America,
Nittetsu and Wheeling-Pittsburgh, or their successors or assigns, but excludes a
purported transferee of any Shares of the Coating Company pursuant to any
transaction that contravenes the terms and conditions of this Agreement and
"Shareholders" means more than one Shareholder.
Section 1.08. Share. "Share" means any share of any class of shares of
the Coating Company.
Section 1.09. Common Share. "Common Share" means any of the common
Shares of the Coating Company.
Section 1.10. Preferred Share. "Preferred Share" means any share of the
non-voting (cumulative) preferred shares of the Coating Company.
Section 1.11. Substrate. "Substrate" shall mean the black plate or cold
rolled steel coils which will be converted to tin mill product by the Coating
Company.
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Section 1.12. Toll Processing. "Toll Processing" means the process of
coating steel or other metal coils of another for a service charge.
Section 1.13. Raw Materials Supply Agreement. "Raw Materials Supply
Agreement" refers to a long term agreement by the Coating Company to purchase a
substantial amount of its substrate requirements from Wheeling-Pittsburgh Steel
Corporation.
Section 1.14. Start-Up Date. The Start-Up Date shall mean the date on
which the line is first in service, producing commercially acceptable product.
Section 1.15. Wheeling-Pittsburgh. "Wheeling-Pittsburgh" means
Wheeling-Pittsburgh Corporation, its subsidiaries, affiliates and related
entities.
Section 1.16. Out-of-Pocket Expenses. For purposes of Section 4.04, the
term "Out-of-Pocket Expenses" shall mean the ordinary and necessary business
expenses incurred by personnel incident to their performance of services, but
shall not include normal living expenses.
ARTICLE TWO
Close Corporation Agreement
Section 2.01. Close Corporation Agreement. This Agreement is to be a
close corporation instrument governed by Section 1701.591 of the Ohio Revised
Code, and is a close corporation agreement as that term is defined in Section
1701.01(X) of the Ohio Revised Code. This Agreement shall regulate aspects of
the internal affairs of the Coating Company and the relations of the
Shareholders, Directors and Officers of the Coating Company between themselves
to the extent set forth herein and, if the Articles or Regulations of Coating
Company shall be inconsistent with this Agreement, such inconsistent provision
of the Articles and the Regulations shall be suspended during the term of this
Agreement and the provisions of this Agreement shall be controlling. To the
extent not inconsistent with the provisions of this Agreement, the Articles and
Regulations of the Coating Company, as amended from time to time,
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shall regulate aspects of the internal affairs of the Coating Company and the
relations of the Shareholders and Directors of the Coating Company among
themselves.
ARTICLE THREE
Corporate Governance
Section 3.01. Shareholders' Authority. The Shareholders and the Coating
Company agree that there shall be one (1) regular meeting of the Shareholders of
the Coating Company to be held within three (3) months of the end of the Coating
Company's fiscal year. The parties to this Agreement agree to hold other
Shareholders meetings only when requested in writing by one of the Common
Shareholders or only when required by the Ohio Revised Code.
Section 3.02. Directors' Authority. The parties agree that there shall
be two (2) regular meetings of the board of directors ("Board") of the Coating
Company held semi-annually. Other meetings shall be held only upon the written
request of three or more directors ("Directors") of the Coating Company. All
actions of the Board shall require the affirmative vote of five (5) members in
order for the action to be effective. The Directors of the Coating Company shall
exercise the authority of Coating Company as provided in the Ohio Revised Code,
subject to the terms and conditions of this Agreement, including, but not
limited to, the requirement that all actions require four (4) affirmative votes
of the members of the Board.
If any action proposed by any member of the Board concerning the
operations of the Coating Company, other than the Major Corporate Decisions
described in Section 3.05(C) hereof, does not receive four (4) affirmative
votes, any three (3) directors may request arbitration of this action as
provided in Section 11.16 hereof.
Section 3.03. Election and Number of Directors. The Board of the
Coating Company shall be comprised of eight (8) Directors. No action shall be
taken by the Board of the Coating Company except at a meeting of the Directors
at which a quorum of the Directors are present, or, alternatively, pursuant to a
unanimous action in writing as provided in the Ohio Revised Code.
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Xxxx Xxxx America shall have the right to elect three Directors of the Coating
Company and Wheeling-Pittsburgh shall have the right to elect three Directors of
the Coating Company. Any Director appointed or selected by a Shareholder(s) may
be removed by that Shareholder at any time with or without cause. Any vacancy on
the Board shall be filled within thirty (30) days after it occurs, by the
Shareholder(s) who originally designated the Director whose seat on the Board is
vacant.
Section 3.04. Selection of Officers and Authority of Officers.
Notwithstanding any provision of the Ohio Revised Code to the contrary, the
officers of the Coating Company and their duties, responsibilities and authority
shall be as follows:
A. The Chairman of the Board shall be elected by Xxxx Xxxx
America and shall chair the meetings of the Board.
B. The President and Chief Executive officer shall be elected by
Wheeling-Pittsburgh and shall have the authority to conduct
the day-to-day operations of the business as is consistent
with the normal authority of a President of a corporation.
C. An Executive Vice President elected by Xxxx Xxxx America whom
the Vice President of Administration and Treasurer and
Secretary will report.
D. A Vice President of Administration and Treasurer shall be
elected by Wheeling-Pittsburgh and shall have such authority
and responsibility for the administrative, human resources,
accounting and financial affairs of the Coating Company as the
President shall prescribe through the Executive vice
President.
E. A Secretary and Assistant Secretary shall be elected by
Wheeling-Pittsburgh and Xxxx Xxxx America respectively and
shall be responsible for maintaining the business and
corporate records of the Coating Company and shall report to
the Executive Vice President.
Section 3.05. Director Authority and Major Corporate Decisions.
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A. Limitation on Officers. No officer shall have the authority to
exercise any Director's Authority (hereinafter defined)
including but not limited to any activity outside the ordinary
course of the business of the Coating Company which has not
been previously approved by the Directors of the Coating
Company.
B. Action by a Majority of the Directors. Except as provided in
Section 3.05(C) hereof, the Board by the affirmative vote of
four (4) members may authorize the taking of any Director
Authority or any action of the Coating Company not
specifically prohibited by subparagraph (C) of Section 3.05
hereof. Director Authority shall mean all authority of the
Board as provided in the Ohio Revised Code except for the
actions described in subparagraph (C) of Section 3.05 hereof.
C. Major Corporate Decisions. (a) All major corporate decisions
(as hereinafter defined) shall require the affirmative vote of
Common Shareholders owning sixty-six and two-thirds percent
(66 2/3%) of the voting power of the Common Shares.
(b) For the purposes of this Agreement, "Major
Corporate Decisions" shall be the following:
i. A decision to engage in any business other than the
manufacture for sale or Toll Processing of tin mill
products for customers, including, but not limited
to, the decision to add additional coating lines or
engage in a different line of product or business;
ii. Selling, leasing, assigning, exchanging, disposing or
transferring all or substantially all of the assets,
with or without goodwill, of the Coating Company;
iii. Acquiring all or substantially all of the assets or
stock of another corporation or business entity,
merging or consolidating with another corporation or
business entity, or entering into any other business
combination with another corporation or business
entity;
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iv. Dissolving or liquidating the Coating Company;
v. Selling or issuance by the Coating Company of any f
its Shares or other securities, including treasury
Shares, or creating or issuing new classes of Shares
or other securities;
vi. Amending the Coating Company's Articles or
Regulations, provided, however, that no amendment to
Article 4 purporting to change the rights of
Preferred Shareholders shall be made without the
consent of the preferred shareholders;
vii. Assigning, transferring, settling, compromising,
cancelling or releasing any claim of, or debt owed
to, the Coating Company in excess of Two Hundred
Fifty Thousand Dollars ($250,000) (in the aggregate
in any one calendar year) or any customer debt in
excess of five percent (5%) of the Coating Company's
gross revenues for any one calendar year without
receiving full payment by the Coating Company;
viii. Making, executing or delivering any general
assignment for the benefit of creditors or any bond,
guaranty, indemnity bond, or surety bond, or filing
any petition for bankruptcy or similar proceeding
under any state law or deciding not to contest any
involuntary petition in bankruptcy;
ix Confessing a judgment;
x. Providing for or changing the compensation, including
bonuses, of any officer or Director of the Coating
Company;
xi Authorizing any stock split, including any reverse
stock split;
xii. Authorizing, approving or entering into any agreement
or agreements with or for the benefit of any
Shareholder, Director or officer of the Coating
Company, or any person who is related to or
affiliated, directly or indirectly, with any
Shareholder, Director or officer of the Coating
Company;
xiii. Creating, continuing or contributing to any pension
or profit sharing plan;
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xiv. Incurring or modifying the terms of any bank,
governmental or other debt;
xv. Agreeing to cease doing business or dissolve the
Coating Company;
xvi. Purchasing any Shares of the Coating Company from any
Shareholder;
xvii. Entering into any agreement that provides for any of
the matters described in Paragraphs (i) through (xvi)
above.
Section 3.06. Effect of Bankruptcy.
Notwithstanding anything to the contrary stated hereinabove, in the
event that a party files a petition of bankruptcy, Chapter 7 or 11, or
insolvency or similar process and consequently thereafter rejects its
obligations hereunder and fails to perform, then the other party shall have the
power to appoint any and all directors and officers of the corporation.
ARTICLE FOUR
Agreements Concerning Construction, Development,
Operation and Funding of the Coating Company
Section 4.01. Funding and Contribution of Land Equipment, etc.
A Wheeling-Pittsburgh Contributions. Depending upon the best tax
consequences, Wheeling-Pittsburgh shall either contribute or lease to the
Coating Company the land necessary to develop the Coating Company and the
processing equipment it currently owns. The land and equipment are described on
Exhibit 4.01 hereof and shall be contributed at their fair market value as
determined by an arms-length appraisal. The land and equipment described on
Exhibit 4.01 shall be part of Wheeling-Pittsburgh's capital contribution to the
Coating Company and Wheeling-Pittsburgh shall contribute the difference between
the fair market value of the land and equipment and Six Million Dollars
($6,000,000) in cash as its additional share of the capital of the Coating
Company. These contributions of assets and cash shall be Wheeling-Pittsburgh's
total equity contribution to the Coating Company and shall entitle
Wheeling-Pittsburgh to fifty percent (50%) of the 1200 Common Shares of the
Coating Company.
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B Xxxx Xxxx America's Contributions. Xxxx Xxxx America shall
contribute Six Million Dollars ($6,000,000) in cash to the Coating Company as
its share of the capital of the Coating Company and shall be entitled to fifty
percent (50%) of the 1200 Common Shares of the Coating Company.
C Nittetsu's Contributions. Nittetsu shall contribute Three
Million Dollars ($3,000,000) in cash to the Coating Company as its share of
capital and shall be entitled to 100% of the 300 non-voting cumulative Preferred
Shares of the Coating Company.
Section 4.02. Guaranty and Other Securitization of Loans and Financing.
The parties acknowledge and agree that the development of the tinplating line by
the Coating Company shall cost approximately Sixty-Eight Million Dollars
($68,000,000). In addition to the capital contributions described in Section
4.01 hereof, the parties acknowledge and agree that they will attempt to obtain
a Ten Million Dollar ($10,000,000) loan from the State of Ohio (secured by a
lien on the land and building of the Coating Company), a Sixteen Million Five
Hundred Thousand Dollar ($16,500,000) loan provided by or through Xxxx Xxxx
America, and an additional Sixteen Million Five Hundred Thousand Dollar
($16,500,000) loan provided by or through Wheeling-Pittsburgh. Both Xxxx Xxxx
America and Wheeling-Pittsburgh shall be responsible for securing or
guaranteeing their respective loans described in the preceding sentence if
required. Additional financing in approximately the amount of Ten Million
Dollars ($10,000,000) secured, if necessary, by liens on the Coating Company's
equipment will be sought from other sources.
In addition to the capital contributions described above,
Wheeling-Pittsburgh and Xxxx Xxxx America agree to contribute any additional
funds (to cover cost overruns) and working capital (by capital contribution or
loan) that the Coating Company is unable to secure independently from third
parties. Such additional contributions or loans shall be made in proportion to
their ownership of Common Shares.
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Section 4.03. Design of Line, Provision of Expertise, Purchase of
Equipment, Etc. Xxxx Xxxx America and Wheeling-Pittsburgh agree (i) to be
responsible for designing the tin mill line (the "Line") to be constructed by
the Coating Company and (ii) to provide whatever additional expertise is
required to design the Line, purchase the equipment and materials to develop the
Line, and install and operate the Line.
The Line shall be designed to produce tin mill products within the
ranges specified in Exhibit 4.03.
Section 4.04. Construction of the Facility. Xxxx Xxxx America and
Wheeling-Pittsburgh agree to designate a project manager for the development of
the building, the Line and the improvements necessary to develop the Line (the
"Facility) and he will have responsibility and authority to develop the
Facility. Both Xxxx Xxxx America and Wheeling-Pittsburgh agree to provide,
during the construction phase, management and technical assistance to the
Coating Company by contributing qualified personnel at no charge. Only the
actual Out-of-Pocket Expenses incurred by the personnel so contributed shall be
reimbursed by the Coating Company. All Out-of-Pocket Expenses will be subject to
audit by the Coating Company.
ARTICLE FIVE
Restrictions on Transfer, Issuance
or Repurchase of Shares
Section 5.01. Shareholder Transfer Restrictions. In addition to the
requirements of Article NINE, no Shareholder shall, except as otherwise
expressly provided elsewhere in this Agreement, pledge, hypothecate, otherwise
encumber, give, sell, transfer or otherwise distribute (hereinafter collectively
"Transfer"), any Shares of the Coating Company unless such Transfer shall have
been previously approved by the holders of Shares entitling them to exercise not
less than sixty-six and two-thirds percent (66 2/3%) of the voting power of the
Common Shares of the Coating Company.
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Section 5.02. Issuance Restriction on the Coating Company. The Coating
Company shall not issue, sell or otherwise distribute ("Issuance") any of its
Shares (whether authorized but unissued Shares or treasury Shares) to any
person, firm, corporation, partnership, trust or other entity unless (i) such
Issuance shall have been previously approved by the holders of not less than
sixty-six and two-thirds percent (66 2/3%) of the issued and outstanding Common
Shares of the Coating Company and (2) such person shall simultaneously become
bound by the terms and conditions of this Agreement by executing an amendment to
this Agreement satisfactory to all of the Common Shareholders.
Section 5.03. Repurchase Restrictions. The Coating Company shall not
purchase, and no Shareholder shall sell to the Coating Company, any of Coating
Company's own Shares, whether pursuant to the exercise by the Coating Company of
a purchase right or otherwise, if immediately thereafter, its assets would be
less than its liabilities plus its stated (paid in) capital, if any, or if it is
insolvent, or if there is a reasonable ground to believe by such persons it
would be rendered insolvent. For the purposes of this Section 5.03, the term
"Insolvent" means that the Coating Company is unable to pay its obligations as
they become due in the usual course of its business.
Section 5.04. Reasonable Restriction. Each Shareholder and the Coating
Company agree and acknowledge that the restrictions on Transfer and Issuance
imposed by this Agreement are imposed to accomplish legitimate purposes of the
Coating Company, and that such restrictions are not more restrictive than
necessary to accomplish those purposes.
Section 5.05. Unauthorized Transfers are Null and Void. If any
Shareholder shall make a purported Transfer of all or any part of the Shares of
the Coating Company held by it in a transaction that contravenes this Agreement
(hereinafter called the "Breach Shares"), such purported Transfer ("Breach")
shall be void and of no effect whatsoever.
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ARTICLE SIX
Share Purchase Option After a Change in Control,
Buyout Offer After an Impasse, and Preferred Share Buyback
Section 6.01. Notice of Change in Control. Promptly after a Change in
Control has occurred with respect to Wheeling-Pittsburgh, Wheeling-Pittsburgh
shall notify Xxxx Xxxx America in writing of such occurrence. Promptly after a
Change in Control has occurred with respect to Xxxx Xxxx America or its parent
company, Xxxx Xxxx America shall notify Wheeling-Pittsburgh in writing of such
occurrence.
Section 6.02. Purchase Option After a Change in Control. For forty-five
(45) days after a party receives notice from the other party pursuant to Section
6.01 hereof that a Change in Control of the other party has occurred, the party
receiving the notice shall have the right and option to purchase all, but not
less than all, of the Shares owned by the other party at a price equal to the
original Purchase Price of $10,000 per share plus (a) 10% interest compounded
from the date of original issuance of the Shares to be purchased, or (b) Fair
Market Value, whichever is greater. The holder of the option shall exercise it
by providing to the other party written notice, as provided in this Agreement,
of such exercise within such forty-five (45) day period.
Section 6.03. Buyout Offer After an Impasse. If an Impasse shall be
deemed to have occurred, then Xxxx Xxxx America and Wheeling-Pittsburgh shall
each have the right to negotiate a buyout of the other's Shares on terms that
are mutually acceptable to both. Both Xxxx Xxxx America and Wheeling-Pittsburgh
recognize that any buyout offer made pursuant to this Section 6.03 must be based
on a Purchase Price of $10,000 per share plus (a) 10% interest compounded from
the date of original issuance of the Common Shares to be purchased, or (b) Fair
Market Value, whichever is greater.
Section 6.04. Buyback of Preferred Shares. If (a) Nittetsu, in its
capacity as distributor, terminates its Distribution Agreement with Coating
Company pursuant to Section 4(a) thereof, or (b) the Coating Company elects not
to renew Nittetsu's Distribution Agreement after the
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expiration of the original term or any renewal term, or (c) Nittetsu elects not
to renew the Distribution Agreement after the expiration of the original term or
any renewal term, then, in any event, Coating Company shall buy back Nittetsu's
Preferred Shares. The obligation to repurchase under parts (a) and (b) of this
Section becomes effective when the event of termination or expiration becomes
effective. The obligation to repurchase under part (c) of this Section becomes
effective two (2) years after the placement of the last purchase order. The
buyback price shall be equal to the initial purchase price plus accumulated
dividends payable in accordance with Article 4 of Coating Company's Articles of
Incorporation. Once effective, the buyback shall be carried out within 90 days
of the qualifying event.
Section 6.05. Payment Term. The payment terms for the purchase of
Shares pursuant to Article Six shall be as provided in Article Eight of this
Agreement.
Section 6.06. Closing. The closing of the purchase of Shares pursuant
to Article Six shall be held in Martins Ferry, Ohio on or before sixty (60) days
after the date written notice of exercise of the option or impasse is given.
ARTICLE SEVEN
Purchase Price
Section 7.01. Purchase Price. The initial purchase price to be paid for
each Common Share of the Coating Company pursuant to this Agreement shall be Ten
Thousand Dollars ($10,000.00) per Share. The initial purchase price to be paid
for each Preferred Share shall be Ten Thousand Dollars ($10,000) per Preferred
Share.
Section 7.02. Books and Records. The Coating Company shall maintain its
books and records of account in accordance with generally accepted accounting
principles, consistently applied, subject to the continuation of any such
accounting practices as are approved by all (100%) of the Common Shareholders.
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ARTICLE EIGHT
Payment for Shares
Section 8.01. Payment Terms. The initial share purchases shall be made
in accordance with Schedule A attached hereto. Unless otherwise agreed by the
purchaser and the seller, payment for all Shares subsequently purchased pursuant
to this Agreement shall be made in full at the closing in either cash or other
immediately available funds.
ARTICLE NINE
Securities Law Restrictions and Provisions
Section 9.01. Restrictive Legend. Except as provided in Section 9.02 of
this Agreement, each certificate representing (a) the Shares and (b) any other
securities issued in respect of the Shares upon any stock split, stock dividend,
merger, recapitalization, consolidation or similar event shall bear a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR UNDER THE SECURITIES
LAW OF ANY STATE AND MAY NOT BE SOLD, ASSIGNED, CONVEYED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT: (1) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER
APPLICABLE SECURITIES LAWS; OR (2) PURSUANT TO AN OPINION OF COUNSEL,
WHICH HAS BEEN OBTAINED BY THE HOLDER AND WHICH IS IN ALL RESPECTS
SATISFACTORY TO THE COATING COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED FROM SUCH HOLDER TO LAWFULLY EFFECT SUCH SALE, ASSIGNMENT,
CONVEYANCE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS,
PROVISIONS AND RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER)
CONTAINED IN THE AMENDED AND RESTATED CLOSE CORPORATION AND
SHAREHOLDER'S AGREEMENT DATED AS OF MARCH 24, 1994 AS THE SAME MAY BE
AMENDED FROM TIME TO TIME WHICH WAS DULY ASSENTED TO BY ALL THE
SHAREHOLDERS OF THE CORPORATION AS PROVIDED IN SECTION 1701.591 OF THE
OHIO REVISED CODE.
THE CORPORATION WILL MAIL TO THE HOLDER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE A COPY OF THE CLOSE
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CORPORATION AND SHAREHOLDER'S AGREEMENT AND OF THE EXPRESS TERMS OF THE
SHARES REPRESENTED BY THE CERTIFICATE AND OF THE OTHER CLASS OR CLASSES
AND OF SERIES SHARES, IF ANY, WHICH THE COATING COMPANY IS AUTHORIZED
TO ISSUE, WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST
THEREFOR.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS
NO BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR
RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS LAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
SECURITIES ACT. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS
THE SALE IS SO EXEMPT.
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE DELAWARE SECURITIES ACT AND MAY NOT BE
SUBSEQUENTLY TRANSFERRED OR SOLD UNLESS SUCH TRANSFER OR SALE IS
PROPERLY REGISTERED OR EXEMPTED UNDER THE DELAWARE SECURITIES ACT.
Each Shareholder consents to the Coating Company making a notation on its
records and giving instructions to any transfer agent of the Shares in order to
implement the restrictions on transfer established in this Agreement.
Section 9.02. Exception to Legend Requirement. A certificate
representing Shares shall not be required to bear the portion of the restrictive
legend relating to the securities law as set forth in Section 9.01 if, in the
opinion of counsel for the Coating Company, such legend is not required in order
to establish compliance with the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities law.
Section 9.03. Notice of Proposed Transfer. Unless there is in effect a
registration statement under the Securities Act or under the applicable state
securities law, prior to making any transfer of Shares bearing the legend
specified in 9.01, the Shareholder shall at its expense provide the Coating
Company: (i) an unqualified written opinion of legal counsel (which shall be,
reasonably satisfactory to the Coating Company) addressed to the Coating Company
and to the
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effect that such Transfer may be effected without registration under the
Securities Act and under applicable state securities laws; and (ii) such other
information as the Coating Company may reasonably request regarding the proposed
Transfer.
ARTICLE TEN
Voting of Shares Subject to Purchase Rights
Section 10.01. Voting of Shares Subject to Purchase Rights. Any
Shareholder or its legal representative whose Shares are being purchased
pursuant to the exercise of one or more of the purchase rights provided for in
this Agreement shall promptly cause each Share certificate evidencing any such
Shares to be appropriately endorsed and delivered to the purchaser thereof.
During the period commencing on the exercise of one or more of such purchase
rights and ending upon the delivery of the Share certificate or certificates
and/or upon delivery of the documents required by the regulations for a lost or
destroyed certificate, each of such Shares evidenced by a certificate which
shall not have been so endorsed and delivered shall be voted by the purchaser
thereof as if he had received the certificates. In connection with such
determination any resulting fractional Share votes shall be counted and given
effect rather than rounded.
ARTICLE ELEVEN
Miscellaneous
Section 11.01. Financial Information. Upon the request of any
Shareholder, the Coating Company will deliver the following reports to such
Shareholder, provided, however, that no Shareholder shall be provided with any
confidential or proprietary commercial information such as customer lists or
marketing plans:
(a) As soon as practicable after the end of each fiscal year but,
in any event, within 90 days thereafter, consolidated balance sheets of the
Coating Company and its subsidiaries, if any, as of the end of such fiscal year,
and consolidated statements of income, consolidated statements of shareholders'
equity and consolidated statements of cash flow of the Coating
-17-
Company and its subsidiaries, if any, for such year, prepared in accordance with
the accrual method of accounting and setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail. These
statements shall be audited by independent, certified public accountants.
(b) As soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Coating Company
but, in any event, within forty-five (45) days thereafter, consolidated
statements of income and consolidated statements of cash flows, of the Coating
Company and its subsidiaries, if any, for such period and for the current fiscal
year to date, prepared in accordance with the accrual method of accounting and
setting forth in each case in comparative form the figures for the corresponding
period during the previous fiscal year, all in reasonable detail.
(c) Within thirty (30) days prior to the beginning of each fiscal
year, an annual plan approved by the Directors of the Coating Company as
provided in Section 3.02 hereof, setting forth full and complete forecasted
consolidated balance sheets, consolidated statements of income, and consolidated
statements of cash flow for such fiscal year and for each quarter within that
year and summarizing the marketing, production, research and development,
organization and staffing, and financial strategies which support the annual
plan's forecasted figures.
Section 11.02. Additional Information. Upon the request of any
Shareholder, the Coating Company will deliver or provide to such Shareholder:
(a) With reasonable promptness, such other information and data
with respect to the Coating Company and its subsidiaries, if any, as any such
Shareholder may from time to time reasonably request, provided, however, that no
Shareholder shall be provided with any confidential or proprietary commercial
information such as customer lists or marketing plans.
(b) The right, at its expense, no more often than one time per
calendar quarter, to visit and inspect any of the property of the Coating
Company, to examine and copy its books of
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account and records, and to discuss its affairs, finances and accounts with the
Coating Company officers, all at such reasonable times with reasonable notice.
Section 11.03. Notices. Any notices, demands or other communications
(collectively, "Notices") required or permitted to be given by any party to
another under this Agreement shall be in writing, either delivered by hand to
the other party at that party's address set forth below, or sent by postage
prepaid certified mail, return receipt requested, or sent via facsimile
transmission, or by courier to the other party at that party's address set forth
below. A Notice delivered by hand shall be deemed to have been given when it is
received by the party to whom it is being given. A Notice sent by certified mail
or courier shall be deemed to have been given upon the signing of the notice of
receipt or refusal after such Notice has been mailed/sent to the Notice address
of the recipient. The facsimile copy shall be deemed received when acknowledged
by the receiver. The Notice addresses of the parties are as follows:
If to the Coating Company:
Ohio Coatings Company
P. O. Xxx 000
Xxxxxxx Xxxxx, Xxxx 00000
If to Xxxx Xxxx America:
Xxxx Xxxx Tinplate America Corp.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
If to Wheeling-Pittsburgh:
Attn: President
Wheeling-Pittsburgh Corporation
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Attn: Xxxxx X. Xxxxxxx
Wheeling-Pittsburgh Steel Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
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If to Nittetsu:
Nittetsu Shoji America, Inc.
Citicorp Plaza, Suite 1860
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Any change in the Notice address of a party for the purpose Notice under this
Section 11.03 may be effected only by Notice given to all of the other parties.
Section 11.04. Successors, Assigns, etc.
The terms and provisions hereof shall bind and inure to the benefit of
the parties and their respective heirs, successors and permitted assigns
(including successive, as well as immediate, successors and assigns).
Section 11.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
Section 11.06. Waiver. The failure of any party hereto to enforce at
any time any of the provisions of this Agreement shall in no way be construed to
be a waiver of any such provision, nor in any way affect the validity of this
Agreement or any part hereof or the right of such party thereafter to enforce
each and every such provision. No waiver of any breach of or non-compliance with
this Agreement shall be held to be a waiver of any other or subsequent breach or
non-compliance.
Section 11.07. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same agreement.
Section 11.08. Tolling of Time. The running of any period of time
during which, under this Agreement, any right may be exercised or any obligation
must be performed shall be tolled for as long as the order of any court shall
prohibit the exercise of any such right or the performance of any such
obligation.
-20-
Section 11.09. Amendment or Termination of this Agreement; Action by
Shareholders. Without the written consent of Shareholders owning at least eighty
percent (80%) of the Shares then outstanding, (i) this Agreement may not be
amended or terminated, provided, however, that no section of this Agreement
describing the rights and/or obligations of Preferred Shareholders shall be
amended or terminated without the consent of such Preferred Shareholder. Neither
the Coating Company nor any shareholder shall do or cause to be done anything
that would result in the invalidation of this Agreement, including causing the
Coating Company to become a public company.
Section 11.10. Entire Agreement. This Agreement along with the Letter
of Intent dated June 21, 1994, which refers to the Raw Materials Supply
Agreement, Equipment Supply Agreement, the loan agreements provided for in
Section 4.02 and Distribution Agreement(s) are the entire and exclusive
statement of the parties' agreement and they supersede all prior agreements,
understandings, negotiations and discussions among the parties, whether oral or
written, including, without limitation, prior letters of intent.
Section 11.11. Provisions Severable. If any provision of this Agreement
or the application of any such provision to any person or any circumstance shall
be determined to be invalid or unenforceable, then such determination shall not
affect any other provisions of this Agreement or the application of such
provisions to any other person or circumstance, all of which other provisions
shall remain in full force and effect; and, if any provision of this Agreement
is capable of two constructions, one of which would render the provision
invalid, then such provision shall have the meaning which renders it valid.
Section 11.12. Effect of Invalidation and Termination. If all of the
terms and conditions precedent set forth in the Letter of Intent dated June 21,
1994 have not been satisfied or waived prior to the expiration date set forth
therein, then this Shareholder's Agreement shall terminate and the Coating
Company shall unwind all prior transactions and return all equity contributions
to their respective contributors.
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In the event of any invalidation of this Agreement pursuant to the
provisions of Section 1701.591 of the Ohio Revised Code or the termination of
this Agreement pursuant to any provision set forth herein, the entire Agreement
shall be of no further effect and all aspects of the internal affairs of the
Coating Company and the regulations of the holders of the Common Shares and
Preferred Shares among themselves shall be governed by the Articles and
Regulations of the Corporation as then in effect.
Section 11.13. Pronouns. When used in this Agreement, each pronoun and
the term "Person" shall be deemed to mean one or more individuals, firms,
corporations (non-profit or for profit), trusts, partnerships, unincorporated
societies or associations, governmental bodies or any agency or subdivision
thereof, or any other entities, as the context or circumstances may indicate.
Section 11.14. Captions. The captions contained in this Agreement were
included only for convenience or reference and do not define, limit, explain or
modify this Agreement or its interpretation, construction or meaning and are in
no way to be construed as a part of this Agreement.
Section 11.15. Exhibits Incorporated by Reference. All exhibits
attached hereto are incorporated by reference as if fully rewritten herein.
Section 11.16. Mandatory Arbitration. Any dispute that may arise
regarding the rights or duties of the parties established pursuant to the
provisions of this Agreement, except pursuant to the provisions of Section
3.05(C)(b)(1), or regarding the enforcement of such provisions, shall be subject
to the provisions of this Section 11.16. In the event that any such dispute
shall arise, the parties shall in good faith attempt to amicably resolve said
dispute. In the event that a resolution cannot be reached within fifteen (15)
days, any party to the dispute may submit such dispute to arbitration in
Pittsburgh, Pennsylvania or in another mutually acceptable location in
accordance with the rules of the American Arbitration Association then
prevailing; provided however, such dispute shall be arbitrated and a decision
rendered within a sixty (60) day period. The arbitrator may issue any order or
provide any remedy existing in law or equity and his or her decision shall
-22-
be final and binding. Each party to the arbitration shall be responsible for its
pro rata share of the arbitration costs, including the fee of the arbitrator.
Section 11.17. Approval of Agreement. The effectiveness of this
agreement is subject to the approval of the respective Boards of Directors of
each of Xxxx Xxxx, Wheeling-Pittsburgh, Nittetsu Shoji and the Coating Company
on or before September 21, 1994.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by its duly authorized officer to be effective as of the date first
above written.
WITNESSETH: XXXX XXXX TINPLATE AMERICA CORP.
______________________________ By: [illegible signature]
---------------------------------
Its: President
Date: February 21, 1995
WHEELING-PITTSBURGH CORPORATION
______________________________ By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Its: President
Date: February 21, 1995
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NITTETSU SHOJI AMERICA, INC.
______________________________ By: [signature illegible]
----------------------------------
Its: President
Date: February 21, 1995
OHIO COATINGS COMPANY
______________________________ By: [signature illegible]
----------------------------------
Its: President & CEO
Date: February 21, 0000
XXXXX XX XXXX XXXXXXXX,
XXXXXX XX XXXX:
I, Xxxxx X. Xxxxxx, Notary of said County and State, do certify that
______________________, who signed the writing hereto annexed bearing date the
_____ day of __________________, 1995, for XXXX XXXX TINPLATE AMERICA CORP., has
this day acknowledged the said writing to be the act and deed of said
corporation.
Given under my hand and official seal this ____ day of
_________________, 1995.
__________________________________
Notary Public
My Commission Expires:
October 28, 0000
XXXXX XX XXXX XXXXXXXX,
XXXXXX XX XXXX:
I, Xxxxx X. Xxxxxx, Notary of said County and State, do certify that
Xxxxx X. Xxxxxxx, who signed the writing hereto annexed bearing date the ______
day of __________________, 1995, for WHEELING-PITTSBURGH CORPORATION has this
day acknowledged the said writing to be the act and deed of said corporation.
Given under my hand and official seal this ______ day of
___________________, 1995.
__________________________________
Notary Public
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My Commission Expires:
October 28, 0000
XXXXX XX XXXX XXXXXXXX,
XXXXXX XX XXXX:
I, Xxxxx X. Xxxxxx, Notary of said County and State, do certify that
_____________________, who signed the writing hereto annexed bearing date the
______ day of __________________, 1995, for NITTETSU SHOJI AMERICA, INC., has
this day acknowledged the said writing to be the act and deed of said
corporation.
Given under my hand and official seal this ______ day of
___________________, 1995.
__________________________________
Notary Public
My Commission Expires:
October 28, 0000
XXXXX XX XXXX XXXXXXXX,
XXXXXX XX XXXX:
I, Xxxxx X. Xxxxxx, Notary of said County and State, do certify that
____________________________, who signed the writing hereto annexed bearing date
the ______ day of __________________, 1995, for OHIO COATINGS COMPANY, has this
day acknowledged the said writing to e the act and deed of said corporation.
Given under my hand and official seal this ______ day of
___________________, 1995.
__________________________________
Notary Public
My Commission Expires:
October 28, 1997
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FIRST AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
THIS FIRST AMENDMENT TO CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT (the
"Amendment") is made and entered into as of December 26, 1997, by and among Xxxx
Xxxx America Corporation, f/k/a Xxxx Xxxx Tinplate America Corp. ("Xxxx Xxxx
America"), a California corporation, Wheeling-Pittsburgh Corporation
("Wheeling-Pittsburgh"), a Delaware corporation and Ohio Coatings Company
("Coating Company"), an Ohio corporation.
WHEREAS, the parties hereto are parties to that certain Close Corporation
and Shareholders' Agreement dated as of March 24, 1994 (the "Agreement").
WHEREAS, the parties desire to amend the Agreement in accordance with
Section 11.09 therein.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties, intending to be legally bound
hereby, agree as follows:
AGREEMENT
1.0 Section 3.02 of the Agreement is hereby deleted and replaced in its
entirety with the following [emphasis added to show changes]:
Section 3.02. Directors' Authority. The parties agree that there shall be
two (2) regular meetings of the board of directors ("Board") of the Coating
Company held semi-annually. Other meetings shall be held only upon the
written request of three or more directors ("Directors") of the Coating
Company. All actions of the Board shall require the affirmative vote of
five (5) members in order for the action to be effective. The Directors of
the Coating Company shall exercise the authority of Coating Company as
provided in the Ohio Revised Code, subject to the terms and conditions of
this Agreement, including, but not limited to, the requirement that all
actions require FIVE (5) affirmative votes of the members of the Board.
If any action proposed by any member of the Board concerning the operations
of the Coating Company, other than the Major Corporate Decisions described
in Section 3.05(C) hereof,
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does not receive five (5) affirmative votes, any FOUR (4) directors may
request arbitration of this action as provided in Section 11.16 hereof.
2.0 Section 3.03 of the Agreement is hereby deleted and replaced in its
entirety with the following [emphasis added to show changes]:
Section 3.03. Election and Number of Directors. The Board of the Coating
Company shall be comprised of eight (8) Directors. No action shall be taken
by the Board of the Coating Company except at a meeting of the Directors at
which a quorum of the Directors are present, or, alternatively, pursuant to
a unanimous action in writing as provided in the Ohio Revised Code. Xxxx
Xxxx America shall have the right to elect FOUR (4) Directors of the
Coating Company and Wheeling-Pittsburgh shall have the right to elect FOUR
(4) Directors of the Coating Company. Any Director appointed or selected by
a Shareholder(s) may be removed by that Shareholder at any time with or
without cause. Any vacancy on the Board shall be filled within thirty (30)
days after it occurs, by the Shareholder(s) who originally designated the
Director whose seat on the Board is vacated.
3.0 Section 3.04 of the Agreement is hereby deleted and replaced in its
entirety with the following [emphasis added to show changes]:
Section 3.04. Selection, Authority and Compensation of Officers.
Notwithstanding any provision of the Ohio Revised Code to the contrary, the
officers of the Coating Company and their duties, responsibilities,
authority AND COMPENSATION shall be as follows:
A. The Chairman of the Board shall be elected FROM TIME TO TIME, AND AT
ANY TIME, BY WHEELING PITTSBURGH and shall chair the meetings of the
Board.
B. THE HONORABLE CHAIRMAN OF THE BOARD SHALL BE ELECTED FROM TIME TO
TIME, AND AT ANY TIME, BY XXXX XXXX AMERICA. THE PERSON ELECTED TO
THIS POSITION SHALL CALL EACH MEETING OF THE BOARD TO ORDER AND MAKE
THE OPENING REMARKS FOR THAT MEETING.
C. The President and Chief Executive Officer shall be elected FROM TIME
TO TIME, AND AT ANY TIME, by Wheeling-Pittsburgh and shall have the
authority to conduct the day-to-day operations of the business as is
consistent with the normal authority of a President of a corporation.
WHEELING-PITTSBURGH
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SHALL HAVE THE EXCLUSIVE AUTHORITY AND RIGHT TO DETERMINE THE SALARY
OF THE PRESIDENT AND CHIEF EXECUTIVE OFFICER; PROVIDED, HOWEVER, THE
MAXIMUM SALARY PAYABLE TO SUCH OFFICER SHALL NOT EXCEED THE MAXIMUM
SALARY AMOUNT DETERMINED BY THE SHAREHOLDERS FROM TIME TO TIME.
D. An Executive Vice President SHALL BE elected FROM TIME TO TIME, AND AT
ANY TIME, by Xxxx Xxxx America to whom the Vice President of
Administration, Treasurer, CHIEF FINANCIAL OFFICER and Secretary will
report. XXXX XXXX AMERICA SHALL HAVE THE EXCLUSIVE AUTHORITY AND RIGHT
TO DETERMINE THE SALARY OF THE EXECUTIVE VICE PRESIDENT; PROVIDED,
HOWEVER, THE MAXIMUM SALARY PAYABLE TO SUCH OFFICER SHALL NOT EXCEED
THE MAXIMUM SALARY AMOUNT DETERMINED BY THE SHAREHOLDERS FROM TIME TO
TIME.
E. A Vice President of Administration, Treasurer AND CHIEF FINANCIAL
OFFICER shall be elected FROM TIME TO TIME, AND AT ANY TIME, by
Wheeling-Pittsburgh and shall have such authority and responsibility
for the administrative, human resources, accounting and financial
affairs of the Coating Company as the President shall prescribe
through the Executive Vice President, AS WELL AS THE POWERS AND DUTIES
NORMALLY ASSOCIATED WITH THE TITLE OF CHIEF FINANCIAL OFFICER;
PROVIDED, HOWEVER, THAT HE/SHE SHALL REPORT TO THE EXECUTIVE VICE
PRESIDENT. WHEELING-PITTSBURGH SHALL HAVE THE EXCLUSIVE AUTHORITY AND
RIGHT TO DETERMINE THE SALARY OF THE VICE PRESIDENT OF ADMINISTRATION,
TREASURER AND CHIEF FINANCIAL OFFICER; PROVIDED, HOWEVER, THE MAXIMUM
SALARY PAYABLE TO SUCH OFFICER SHALL NOT EXCEED THE MAXIMUM SALARY
AMOUNT DETERMINED BY THE SHAREHOLDERS FROM TIME TO TIME.
F. A VICE PRESIDENT OF BUSINESS DEVELOPMENT SHALL BE ELECTED FROM TIME TO
TIME, AND AT ANY TIME, BY XXXX XXXX AMERICA AND SHALL HAVE THE
AUTHORITY, DUTIES AND RESPONSIBILITIES AS SET FORTH IN ATTACHMENT A
HERETO AND INCORPORATED HEREIN BY THIS REFERENCE. XXXX XXXX AMERICA
SHALL HAVE THE EXCLUSIVE AUTHORITY AND RIGHT TO DETERMINE THE SALARY
OF THE VICE PRESIDENT OF BUSINESS DEVELOPMENT; PROVIDED, HOWEVER, THE
MAXIMUM SALARY PAYABLE TO SUCH OFFICER SHALL NOT EXCEED THE MAXIMUM
SALARY AMOUNT DETERMINED BY THE SHAREHOLDERS FROM TIME TO TIME.
-4-
G. A Secretary [DELETED "ASSISTANT SECRETARY"] shall be elected by
Wheeling-Pittsburgh and shall be responsible for maintaining the
business and corporate records of the Coating Company and shall report
to the Executive Vice President.
4.0 Section 3.05(B) is hereby deleted and replaced in its entirety with the
following [emphasis added to show changes]:
B. Action by a Majority of the Directors. Except as provided in Section
3.05(C) hereof, the Board by the affirmative vote of FIVE (5) members
may authorize the taking of any Director Authority or any action of
the Coating Company not specifically prohibited by subparagraph (C) of
Section 3.05 hereof. Director Authority shall mean all authority of
the Board as provided in the Ohio Revised Code except for the actions
described in subparagraph (C) of Section 3.05 hereof.
5.0 Section 3.05(C)(b)(x) is hereby amended as follows [emphasis added to show
changes]:
x. Providing for or changing the compensation, including bonuses, of any
officer or Director of the Coating Company, EXCEPT AS OTHERWISE
DETERMINED BY THE APPOINTING SHAREHOLDER IN ACCORDANCE WITH SECTION
3.04.
6.0 The following terms and conditions shall be added to the Agreement and
shall comprise Section 3.07:
Section 3.07. Annual Target Bonuses. The Board of Directors is authorized
to grant, in its sole discretion, and in accordance with the terms and
conditions contained herein, annual target bonuses for each completed
fiscal year to (i) the President and Chief Executive Officer, (ii) the
Executive Vice President, (iii) the Vice President of Administration,
Treasurer and Chief Financial Officer, and/or (iv) the Vice President of
Business Development (the "Executive Officers)"). In each Executive
Officer's case, the annual target bonus, if paid, shall not exceed fifty
percent (50%) of such Executive Officer's annual salary, as determined in
accordance with Section 3.04 herein, and may only be paid to one or more
Executive Officers if the Coating Company has achieved a positive net
income (after all applicable taxes for the applicable fiscal year). If
paid, all annual target bonuses shall be payable only out of the Coating
Company's after tax net income for such fiscal year. In no event shall the
aggregate of all annual target bonuses paid with
-5-
respect to any fiscal year exceed twenty percent (20%) of the Coating
Company's entire after tax net income for such year. The Compensation
Committee of the Board shall have the sole authority to interpret and apply
the provisions of the foregoing.
7.0 Except as expressly set forth above, the Agreement remains in full force
and effect and is not modified in any respect.
8.0 This Amendment may be executed in two or more counterparts and by different
parties hereto in separate counterparts, each of which when executed and
delivered, in accordance with Section 11.03 of the Agreement, shall be deemed to
be an original and all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by its duly authorized officer on the date first above written.
XXXX XXXX AMERICA CORPORATION WHEELING-PITTSBURGH
CORPORATION
By: [signature illegible] By: [signature illegible]
----------------------------------------- ------------------------
Its: president Its: Chairman
---------------------------------------- -----------------------
OHIO COATINGS COMPANY
By: [signature illegible]
-----------------------------------------
Its: President
----------------------------------------
SECOND AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
THIS SECOND AMENDMENT TO CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
(the "Amendment") is made and entered into May 1, 1998 by and among Xxxx Xxxx
Tinplate America Corp. ("Xxxx Xxxx America"), a California corporation,
Wheeling-Pittsburgh Corporation ("Wheeling-Pittsburgh"), a Delaware corporation,
Nittetsu Shoji America, Inc. ("Nittetsu'), a California corporation and Ohio
Coatings Company ("Coatings Company"), an Ohio corporation.
WHEREAS, the parties hereto are parties to a certain Close Corporation
and Shareholders' Agreement dated as of March 24, 1994, as amended by the First
Amendment to Close Corporation and Shareholders Agreement dated as of December
26, 1997, by and among Dong America, Wheeling-Pittsburgh and Coating Company
(the "Agreement").
WHEREAS, the parties desire to further amend the Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties, intending to be legally
bound hereby, agree as follows:
AGREEMENT
PARAGRAPH 1. EFFECTIVE DATE AND EFFECT.
1.1 Effective Date. The effective date of this Amendment shall be
May 1, 1998.
1.2 Effect. Except as expressly amended by this Amendment the
Agreement remains unchanged, in full force and effect and is incorporated herein
by reference as if rewritten in its entirety. Each reference in the Agreement
(whether made by the use of the term "Agreement or the use of the prefix
"here____", "there____" or otherwise) shall mean the Agreement as amended by and
including this Amendment. Except as otherwise amended or defined in this
Amendment, all capitalized arms used in this Amendment shall have the meanings
given to them by the Agreement as amended by this Amendment.
PARAGRAPH 2. AMENDMENT OF EXISTING PROVISIONS
2.1 Section 4.02 Guaranty and Other Securitization of Loans and
Financing is hereby amended by deleting the second paragraph of such Section in
its entirety.
PARAGRAPH 3. ADDITIONAL PROVISIONS.
3.1 The Agreement is hereby amended by adding the following
Sections:
Section 1.17 CitiBank Prime Rate. "CitiBank Prime Rate" is the
rate of interest CitiBank NA publicly establishes from time to time as
its prime rate. Any change in the interest rate resulting from a change
in the CitiBank Prime Rate shall become effective as of the date on
which such change in the CitiBank Prime Rate becomes effective.
Section 4.05 Capital Maintenance Obligations.
A. From time to time during the term of this Agreement,
in addition to the capital contributions required by Section 4.01
hereof, Xxxx Xxxx America and Wheeling-Pittsburgh each agrees to
contribute to the Coating Company its Proportionate Share (as defined
below) of the following (either and both, a "Capital Maintenance
Obligation"):
1. Any amount(s) determined to be required by the
certain Capital Maintenance Agreement dated December 7, 1995 by and
among Wheeling-Pittsburgh, Xxxx Xxxx America, Coating Company and
National City Bank Northeast (the "Capital Maintenance Agreement") to
be contributed by Wheeling-Pittsburgh and Xxxx Xxxx America to Coating
Company as Deficit Advances thereunder, pursuant to the terms thereof,
and/or
2. Any amount(s) determined jointly by the President and
the Executive Vice President of Coating Company to be required to meet
Coating Company's working capital requirements and/or its obligations
to third party lenders, including National City Bank, which amounts)
cannot otherwise be secured independently from third parties. Neither
the President nor the Executive Vice President shall unreasonably
withhold his concurrence to the determination of a required amount
under this Section 4.05A.2. Such joint determination shall be final and
conclusive and, notwithstanding any provision of this Agreement to the
contrary, shall not be the subject of the mandatory arbitration
provisions of Section 11.16 hereof or the Impasse resolution provisions
of Sections 1.05 and 6.03 hereof.
"Proportionate Share" means, as to either Xxxx Xxxx America or
Wheeling-Pittsburgh, the dollar amount which is the product of
multiplication of (i) the proportion of its ownership of record of
issued and outstanding Common Shares (including for such purpose
Additional Common Shares, if any are then issued and outstanding) as of
the date on which the Joint Notice of a Capital Maintenance Obligation
is issued, times (ii) the total amount of such Capital Maintenance
Obligation.
B. Promptly following a determination of the existence
and the amount of a Capital Maintenance Obligation pursuant to the
preceding Section 4.05A., Coating Company shall notify Xxxx Xxxx
America and Wheeling-Pittsburgh in writing (the "Joint Notice") of (i)
the total amount of the Capital Maintenance Obligation; (ii) their
respective Proportionate Shares thereof; and (iii) the date by which
payment of such Proportionate Shares must be made (the "Due: Date").
Coating Company shall make all reasonable efforts to issue the Joint
Notice to Xxxx Xxxx America and Wheeling-Pittsburgh at least sixty (60)
Banking Days prior to the Due Date stated therein. However, no
deficiency in any Joint Notice (including issuance of such Joint Notice
less than 60 Banking Days prior to the Due Date) shall excuse the
Common Shareholders, or either of them, From fulfilling their
respective obligations under this Section 4.05A.
C. Wheeling-Pittsburgh and Xxxx Xxxx America each will
confirm to the other and to Coating Company in writing as promptly as
possible but in no event later than seven (7) Banking Days after the
issuance of the Joint Notice that it will make payment of its
Proportionate Share of the Capital Maintenance Obligation in full on
the Due Date.
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D. Payment of the Proportionate Share of Capital
Maintenance Obligations arising:
1. Under Section 4.05A.1. hereof shall be made pursuant
to the terms of the Capital Maintenance Agreement.
2. Under Section 4.05A.2. hereof shall be made by way of
a capital contribution to Coating Company in exchange for the issuance
of new Common Shares at the issuance price of Ten Thousand Dollars
($10,000) per Common Share (for purposes of this Section 4.05, the
"Additional Common Shares"). Such payment shall be made by federal
funds bank wire transfer to Coating Company within sixty (60) Banking
Days (as defined in the Capital Maintenance Agreement) after the date
of the Joint Notice relating thereto, unless the Joint Notice specifies
a different Due Date.
E. If either party fails to:
1. Make the confirmation required by Section 4.05C.
hereof on a timely basis, it will be deemed deficient, whereupon the
other party may elect, by written notice given to the deficient party
and to Coating Company as promptly as possible but' in no event later
than fifteen (15) Banking Days after the date of issuance of the Joint
Notice, to pay the entire amount of the Capital Maintenance obligation
on the Due Date; or
2. Make timely payment of its Proportionate Share in
compliance with Section 4.05D. hereof, it will be deemed deficient,
whereupon the other party may elect, by written notice given to the
deficient party and to Coating Company as promptly as possible
following such failure, to pay, in addition to its own Proportionate
Share, the Proportionate Share of the deficient party.
In either event, upon payment by one party to Coating Company of
amounts in the aggregate constituting the entire amount of a Capital
Maintenance Obligation, the deficient party (the "Obligor") shall
become obligated to reimburse the paying party (the "Obligee") for the
Obligor's Proportionate Share plus interest calculated at the CitiBank
Prime Rate plus one percent (1%) for the period beginning on the date
on which such payment in respect of the Obligor's Proportionate Share
is made and ending on the date on which the Reimbursement Obligation is
due and payable, and thereafter at a default rate of the CitiBank Prime
Rate plus three percent (3%) (the "Reimbursement Obligation"). The
Reimbursement Obligation shall be evidenced by a promissory note by
Obligor to Obligee having a term of not more than twelve (12) months
and containing such other terms and conditions as are reasonably
satisfactory to Obligee and otherwise inconsistent herewith (the
"Note"). Such Note shall be executed and delivered by Obligor to
Obligee concurrently with Obligee's payment to Coating Company which
gives rise to the Reimbursement Obligation evidenced thereby. The
Reimbursement Obligation and the Note shall be secured by either: (i)
an irrevocable bank letter of guarantee (or an irrevocable commercial
letter of credit) drawn on a U.S. bank or the U.S. branch of a foreign
bank, on terms and conditions acceptable to Obligee; or (ii) a pledge
of Obligor's Additional Common Shares.
F. In the event that any Reimbursement Obligation is not
paid in full when due pursuant to the terms of the Note evidencing such
Reimbursement Obligation, then so long as such default remains uncured
(whether by payment, by Obligee's election to
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accept Additional Common Shares of Coating Company in lieu of payment
pursuant to the following Section 4.05G., or otherwise), the number of
votes which Obligee shall be entitled to exercise in matters put to the
vote of the Common Shareholders of Coating Company shall be that number
of votes yielding the proportion of the total voting power of Coating
Company which Obligee would hold upon an election made pursuant to the
following Section 4.05G. with respect to such Reimbursement Obligation
if such election were deemed to have been made as of the maturity date
of the Note, and the number of votes which Obligor shall be entitled to
exercise in such matters shall be reduced to such number yielding
voting power equivalent to the difference between such proportion and
one hundred percent (100%). The following is an example of the
application of the foregoing formula:
Assume for purposes of illustration only that:
a. Each Common Shareholder holds 600 Common Shares, each
Common Share entitling the holder to one vote.
b. Each Common Shareholder is issued 150 Additional
Common Shares as the result of a $3,000,000 Capital
Maintenance obligation, of which each had a $1,500,000
Proportionate Share (e.g., 150 Shares at $10,000 per share).
c. Shareholder No. 1 is unable to pay its Proportionate
Share on the Due Date of the Capital Maintenance Obligation,
so Shareholder No. 2 pays the entire amount of the Capital
Maintenance Obligation to Coating Company, and Shareholder No.
1 owes a Reimbursement Obligation to Shareholder No. 2 in the
principal amount of $1,500,000. It is evidenced by a Note
having a term of one year.
d. Shareholder No. 1 (the Obligor) is unable to pay the
Note on its maturity.
e. During the one year period between the maturity of
the Note and the second anniversary of the date on which the
Reimbursement Obligation was incurred (which is the date of
issuance of the Note), so long as the Note remains unpaid,
Shareholder No. 2 (the Obligee) will be entitled to exercise
voting power of Coating Company in the proportion which it
would be entitled to hold if it was deemed to have made a
Section 4.05G. election as of the maturity date of the Note,
to wit:
----------------------------------------------------------------
Shareholder Xx. 0 Xxxxxxxxxxx Xx. 0 Total
---------------------------------------------------------------------------------------------------------
No. % No. %
Shares Owned Shares Owned No. Shares
---------------------------------------------------------------------------------------------------------
Original Common Shares 600 50% 600 50% 1200
-----------------------------------------
Additional Common Shares 150 50% 150 50% 300
---------------------------------------------------------------------------------------------------------
Total before default on Note 750 50% 750 50% 1500
---------------------------------------------------------------------------------------------------------
Transfer of Voting Power as if Section (150) (10%) 1S0 10% -
4.05G. Election
---------------------------------------------------------------------------------------------------------
Total as if Section 4.05G. Election 600 40% 900 60% 1500
---------------------------------------------------------------------------------------------------------
G. In the event that:
1. Obligor fails to deliver the executed Note and collateral to
Obligee on the date a Reimbursement Obligation arises (which shall be considered
an event of default hereunder); or
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2. the Reimbursement Obligation is not paid in full when due
pursuant to the terms of the Note evidencing such Reimbursement Obligation, and
such default is not cured by full payment of such Reimbursement Obligation on or
before the second anniversary of the date on which such Reimbursement Obligation
was incurred,
then Obligee may elect, by written notice given to Obligor and to Coating
Company, to take ownership of those Additional Common Shares issued (or to be
issued) to the Obligor in exchange for the amount of the Reimbursement
Obligation in default; provided that if the Reimbursement Obligation and the
Note are secured by a bank letter of guarantee or letter of credit, Obligee
shall first draw on and apply the proceeds of the letter of guarantee or letter
of credit to satisfaction of the Reimbursement Obligation and may make election
under this Section 4.05G.2. only if, after such application of proceeds, the
default is not cured by full payment of such Reimbursement Obligation on o
before the second anniversary of the date on which such Reimbursement Obligation
was incurred.
The Common Shareholders hereby give their unanimous authorization, approval, and
consent, as required by Section 3.05C. and Article Five of this Agreement, to,
and hereby do direct, Coating Company to, promptly upon receipt of such notice:
(i) cancel on its books and records (or stop issuance of) the Additional Common
Shares issued (or to be issued) to Obligor in respect of the amount of the
Reimbursement Obligation in default, and (ii) issue and deliver to Obligee share
certificates evidencing the issuance of an equivalent number of Additional
Common Shares to Obligee. Upon issuance of such Additional Common Shares to
Obligee: (i) the principal amount of the related Reimbursement Obligation will
be deemed to be paid and extinguished; (ii) the Additional Common Shares issued
to Obligor in respect of the amount of the Reimbursement Obligation in default
shall be deemed cancelled and void; and (iii) Obligor shall have no rights of
any sort whatsoever to or in respect of the Additional Common Shares issued to
Obligee pursuant to this Section 4.05G. Obligor shall forthwith deliver to
Coating Company for cancellation the share certificates evidencing the
Additional Common Shares issued to Obligor in respect of the amount of the
Reimbursement Obligation in default, and Coating Company shall promptly issue
and deliver to Obligee the share certificates evidencing the issuance of such
equivalent number of Additional Common Shares to Obligee.
Nothing contained in this Section 4.05G shall be construed to require the
relinquishment or cancellation of any Common Shares issued and outstanding on
the effective date of this Amendment.
H. While a Reimbursement Obligation is outstanding, any
subsequent payments by the Obligor in respect of Capital Maintenance Obligations
shall be applied first to its Proportionate Share of any outstanding Capital
Maintenance Obligation which has not become a Reimbursement Obligation, and then
to Reimbursement Obligations in inverse order of the incurrence thereof. Obligee
may, but is not required to, accept partial payments of the aggregate
Reimbursement Obligation at any time outstanding.
I. Coating Company shall not be required to repay, in whole or in
part, any loan or return, in whole or in part, any capital contribution made to
Coating Company in satisfaction of a Capital Maintenance Obligation if such
repayment or return would cause Coating Company to breach any obligation under
any agreement to which Coating Company is a party (including without limitation
Section 2(e) of the Capital Maintenance Agreement or Section 5.03 hereof.
-5-
J. All rights and remedies of an Obligee under this Agreement in
respect of Reimbursement Obligations are cumulative and in addition to all other
rights available to Obligee under any other agreement or other document, at law
or in equity.
K. In the event that, under the circumstances described by
Section 4.05E.1. or Section 4.05E.2. hereof, the non-defaulting party elects not
to pay the defaulting party's Proportionate Share of the Capital Maintenance
Obligation (in addition to the non-defaulting party's own Proportionate Share of
the Capital Maintenance Obligation), then the defaulting parry may pledge its
Common Shares (including Additional Common Shares, if any are issued and
outstanding) to the record holder of Preferred Shares, or a bank as security for
a loan the proceeds of which are applied to payment in full of the defaulting
party's Proportionate Share of the Capital Maintenance Obligation; provided that
while the defaulting party remains the record holder of such pledged Common
Shares, the record holder of Preferred Shares or any such bank shall not obtain
any rights to vote or direct the voting of such pledged Common Shares.
PARAGRAPH 4. CONDITIONAL ADDITIONAL PROVISIONS.
4.1 The following provisions further amending the Agreement shall
become effective without any further action of any kind upon and as of the
earlier to occur of the reallocation of voting power pursuant to Section 4.05F.
of this Amendment, or the date of transfer of Additional Common Shares to
Obligee pursuant to Section 4.05G. of this Amendment. Nothing contained in this
Agreement shall be construed to make the following provisions effective
(including expressly but without limitation changing the number of Directors of
Coating Company from eight (8), as provided on the date of this Agreement)
unless and until there is a default under this Agreement pursuant to Section
4.05F. or Section 4.05G.
A. Section 3.02, Directors' Authority, is hereby amended
by deleting such Section in its entirety and substituting therefor the
following:
Section 3.02 Directors Authority. There shall be two (2) regular
meetings of the board of directors (the 'Board') of the Coating Company
to be held semi-annually. Other meetings shall be held only upon the
written request of three or more directors ("Directors") of the Coating
Company. A majority of the whole number of authorized Directors shall
constitute a quorum for a meeting of Directors. The act of a majority
of Directors present at a meeting is the act of the Board, unless
otherwise provided by law, the Articles, the Regulations or this
Agreement.
B. Section 3.03, Election and Number of Directors is
hereby amended by deleting such Section in its entirety and
substituting therefor the following:
Section 3.03 Election, Number of Directors and Term. The Board of the
Coating Company shall be comprised of nine (9) Directors. The Directors
shall be elected by vote of the holders of Common Shares (the "Common
Shareholders"), with each Common Share conferring on the holder thereof
one vote. Subject to compliance with the notice requirements of Section
1701.55(C) of the Ohio Revised Code, each Common Shareholder shall have
the right to cumulate its voting power in an election of Directors.
Each Director shall serve until the next annual meeting of the Coating
Company and his successor is duly elected, or his resignation, removal
or death. Directors may be removed by majority vote of the Common
Shareholders at any time with or without cause; provided that no
Director shall be removed if the number of votes cast against his
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removal would, if cumulatively voted at an election of all directors,
be sufficient to elect at least one Director.
C. Section 3.05 Director Authority and Major Corporate
Decisions is hereby amended by:
1. deleting Section 3.05B. Action by a Majority of the
Directors in its entirety and substituting therefor the following:
[Intentionally omitted]
2. deleting Section 3.05C.(b) Major Corporate Decisions
in its entirety and substituting therefor the following:
(b) For the purposes of this Agreement, "Major Corporate
Decisions" shall be the following:
i. A decision to engage in any business other than the
manufacture for sale or Toll Processing of tin mill
products for customers, including, but not limited
to, the decision to add additional coating lines or
engage in a different line of product or business;
ii. Selling, leasing, assigning, exchanging, disposing or
transferring all or substantially all of the assets,
with or without goodwill, of the Coating Company;
iii. Acquiring all or substantially all of the assets or
stock of another corporation or business entity,
merging or consolidating with another corporation or
business entity, or entering into any other business
combination, with another corporation or business
entity;
iv. Dissolving or liquidating the Coating Company;
v. Amending the Coating Company's Articles, provided,
however, that no amendment to Article 4 purporting to
change the rights of Preferred Shareholders shall be
made without the consent of the Preferred
Shareholders;
vi. Making, executing or delivering any general
assignment for the benefit of creditors or any bond,
guaranty, indemnity bond, or surety bond, or filing
any petition for bankruptcy or similar proceeding
under any state law or deciding not to consent any
involuntary petition in bankruptcy;
vii. Agreeing to cease doing business or dissolve the
Coating Company;
viii. Entering into any agreement that provides for any of
the matters described in paragraphs (i) through (vii)
above.
-7-
PARAGRAPH 5. MISCELLANEOUS.
5.1 Counterparts. This Amendment may be executed in two or more
counterparts and by different parties hereto in separate counterparts each of
which when executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by its duly authorized officer on the date first written above.
XXXX XXXX TINPLATE AMERICA CORP NITTETSU SHOJI AMERICA INC.
By:[signature illegible] By:_______________________________
---------------------------------
Its: 1/5/98 Its:______________________________
WHEELING-PITTSBURGH CORPORATION OHIO COATINGS COMPANY
By: /s/ Xxxx Xxxxx By:_______________________________
--------------------------------
Its: V.P. 5/1/98 Its:______________________________
-8-
THIRD AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
THIS THIRD AMENDMENT TO CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
(the "Amendment") is made and entered into as of December 1, 1998, by and among
Xxxx Xxxx America Corporation, f/k/a Xxxx Xxxx Tinplate America Corp. ("Xxxx
Xxxx America"), a California corporation, Wheeling-Pittsburgh Corporation
("Wheeling-Pittsburgh"), a Delaware corporation and Ohio Coatings Company
("Coating Company"), an Ohio corporation.
WHEREAS, the parties hereto are parties to that certain Close
Corporation and Shareholders' Agreement effective as of March 24, 1994, as
modified by that certain First Amendment to Close Corporation and Shareholders'
Agreement dated as of December 26, 1997 and that certain Second Amendment to
Close Corporation and Shareholders' Agreement dated as of May 1, 1998, both
entered into by and among the parties hereto (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement in accordance with
Section 11.09 of the Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties, intending to be legally
bound hereby, agree as follows:
AGREEMENT
1.0 Section 3.02 of the Agreement is hereby deleted and replaced in its
entirety with the following [emphasis added to show changes]:
Section 3.02. Directors' Authority. The parties agree that there shall
be two (2) regular meetings of the board of directors ("Board") of the
Coating Company held semi-annually. Other meetings shall be held only
upon the written request of three or more directors ("Directors") of
the Coating Company. All actions of the Board shall require the
affirmative vote of six (6) members in order for the action to be
effective. The Directors of the Coating Company shall exercise the
authority of Coating Company as provided in the Ohio Revised Code,
subject to the terms and conditions of this Agreement, including, but
not limited to, the requirement that all actions require six (6)
affirmative votes of the members of the Board.
If any action proposed by any member of the Board concerning
the operations of the Coating Company, other the Major Corporate
Decisions described in Section 3.05(C) hereof, does not receive six (6)
affirmative votes, any five (5) directors may request arbitration of
this action as provided in Section 11.16 hereof.
2.0 Section 3.03 of the Agreement is hereby deleted and replaced in its
entirety with the following [emphasis added to show changes]:
Section 3.03. Election and Number of Directors. The Board of the
Coating Company shall be comprised of ten (10) Directors. No action
shall be taken by the Board of the Coating Company except at a meeting
of the Directors at which a quorum of the Directors are present, or,
alternatively, pursuant to a unanimous action in writing as provided in
the Ohio Revised Code. Xxxx Xxxx America shall have the right to elect
five
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(5) Directors of the Coating Company and Wheeling-Pittsburgh shall have
the right to elect five (5) Directors of the Coating Company. Any
Director appointed or selected by a Shareholder(s) may be removed by
that Shareholder at any time with or without cause. Any vacancy on the
Board shall be filled within thirty (30) days after it occurs, by the
Shareholder(s) who originally designated the Director whose seat on the
Board is vacated.
3.0 Section 3.04 of the Agreement is hereby deleted and replaced in its
entirety with the following [emphasis added to show changes]:
Section 3.04. Selection, Authority and Compensation of Officers.
Notwithstanding any provision of the Ohio Revised Code to the contrary,
the officers of the Coating Company and their duties, responsibilities,
authority and compensation shall be as follows:
A. The Chairman of the Board shall be elected from tune to time,
and at any time, by Wheeling-Pittsburgh and shall chair the
meetings of the Board.
B. The Honorable Chairman of the Board shall be elected from time
to time, and at any time, by Xxxx Xxxx America. The person
elected to this position shall call each meeting of the Board
to order and make the opening remarks for that meeting.
C. A VICE CHAIRMAN OF THE BOARD SHALL BE ELECTED FROM TIME TO
TIME AND AT ANY TIME BY WHEELING-PITTSBURGH AND SHALL ATTEND
MEETINGS OF THE BOARD. THE VICE CHAIRMAN ELECTED BY
WHEELING-PITTSBURGH MUST BE A MEMBER OF THE BOARD OF THE
COATING COMPANY.
D. A VICE CHAIRMAN OF THE BOARD SHALL BE ELECTED FROM TIME TO
TIME, AND AT ANY TIME, BY XXXX XXXX AMERICA AND SHALL ATTEND
MEETINGS OF THE BOARD. THE VICE CHAIRMAN ELECTED BY XXXX XXXX
AMERICA MUST BE A MEMBER OF THE BOARD OF THE COATING COMPANY.
E. The President and Chief Executive Officer shall be elected
from time to time, and at any time, by Wheeling-Pittsburgh and
shall have the authority to conduct the day-to-day operations
of the business as is consistent with the normal authority of
a President of a corporation. Wheeling-Pittsburgh shall have
the exclusive authority and right to determine the salary of
the President and Chief Executive Officer; provided, however,
the maximum salary payable to such officer shall not exceed
the maximum salary amount determined by the Shareholders from
time to time.
F. An Executive Vice President shall be elected from time to
time, and at any time, by Xxxx Xxxx America to whom the Vice
President of Administration, Treasurer, Chief Financial
Officer and Secretary will report. Xxxx Xxxx America shall
have the exclusive authority and right to determine the salary
of the Executive Vice President, provided, however, the
maximum salary payable to such officer shall not exceed the
maximum salary amount determined by the Shareholders from time
to time.
-2-
G. A Vice President of Administration, Treasurer and Chief
Financial Officer shall be elected from time to time, and at
any time, by Wheeling-Pittsburgh and shall have such authority
and responsibility for the administrative, human resources,
accounting and financial affairs of the Coating Company as the
President shall prescribe through the Executive Vice
President, as well as the powers and duties normally
associated with the title of Chief Financial Officer;
provided, however, that he/she shall report to the Executive
Vice President. Wheeling-Pittsburgh shall have the exclusive
authority and right to determine the salary of the Vice
President of Administration, Treasurer and Chief Financial
Officer; provided, however, the maximum salary payable to such
officer shall not exceed the maximum salary amount determined
by the Shareholders frown time to time.
H. A Vice President of Business Development shall be elected from
time to time, and at any time, by Xxxx Xxxx America and shall
have the authority, duties and responsibilities as set forth
in Attachment A hereto and incorporated herein by this
reference. Xxxx Xxxx America shall have the exclusive
authority and right to determine the salary of the Vice
President of Business Development; provided, however, the
maximum salary payable to such officer shall not exceed the
maximum salary amount determined by the Shareholders from time
to time.
I. A Secretary shall be elected by Wheeling-Pittsburgh and shall
be responsible for maintaining the business and corporate
records of the Coating Company and shall report to the
Executive Vice President.
4.0 Section 3.05(B) is hereby deleted and replaced in its entirety with the
following [emphasis added to show changes]:
B. Action by a Majority of the Directors. Except as provided in
Section 3.05(C) hereof the Board by the at l affirmative vote
of six (6) members may authorize the taking of any Director
Authority or any action of the Coating Company not
specifically prohibited by subparagraph (C) of Section 3.05
hereof. Director Authority shall mean all authority of the
Board as provided in the Ohio Revised Code except for the
actions described in subparagraph (C) of Section 3.05 hereof.
5.0 Except as expressly set forth above, the Agreement remains in full
force and effect and is not modified in any respect by this Amendment.
6.0 This Amendment may be executed in two or more counterparts and by
different parties hereto in separate counterparts, each of which when executed
and delivered, in accordance with Section 11.03 of the Agreement, shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by its duly authorized officer on the date first above written.
XXXX XXXX AMERICA WHEELING -PITTSBURGH
CORPORATION CORPORATION
By: [signature illegible] By: [signature illegible]
------------------------------- ---------------------------------
Its:_______________________________ Its:_________________________________
OHIO COATINGS COMPANY
By: [signature illegible]
-------------------------------
Its:_______________________________
-4-
FOURTH AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
BETWEEN XXXX XXXX TINPLATE AMERICA CORP.,
NIPPON STEEL TRADING AMERICA, INC.
(FORMERLY KNOWN AS NTITETSU SHOJI AMERICA, INC.),
WHEELING PITTSBURGH CORPORATION AND
OHIO COATINGS COMPANY
THIS AGREEMENT ("THIS AGREEMENT") made as of this 15th day of July,
1999 by and among XXXX XXXX TINPLATE AMERICA CORP. ("XXXX XXXX") a California
corporation, WHEELING-PITTSBURGH CORPORATION ("WHEELING-PITTSBURGH"), a Delaware
corporation, NIPPON STEEL TRADING AMERICA, INC. (formerly known as NITTETSU
SHOJI AMERICA, INC.) ("NITTETSU"), a California corporation, and OHIO COATINGS
COMPANY (the "COATING COMPANY"), an Ohio corporation.
RECITALS:
WHEREAS, Wheeling-Pittsburgh and Xxxx Xxxx are the sole owners of all
of the outstanding shares of the common stock and Nittetsu is the sole owner of
all of the outstanding shares of the preferred stock of the Coating Company and
said stockholders (collectively the "SHAREHOLDERS") are the sole shareholders of
the Coating Company; and
WHEREAS, the Shareholders and the Coating Company are parties to an
agreement titled "Close Corporation and Shareholders' Agreement", dated as of
March 24, 1994, (the "SHAREHOLDERS' AGREEMENT") relating to the internal affairs
and operations of the Coating Company, the relations among the Shareholders,
directors, officers and other holders of shares of stock of the Coating Company,
and the issuance, sale, transfer, distribution and encumbrances of the shares of
stock of the Coating Company and the redemption of the preferred stock owned by
Nittetsu; and
WHEREAS; Wheeling-Pittsburgh, through its wholly-owned subsidiary
Wheeling-Pittsburgh Steel Corporation (referred to herein as "THE STEEL
COMPANY"), and Nittetsu are the sole distributors of the products of the Coating
Company, pursuant to the terms of distribution agreements by each of said
parties with the Coating Company dated as of February 21, 1995 (the Distribution
Agreement between the Coating Company and Nittetsu is referred to herein as the
"NITTETSU DISTRIBUTION AGREEMENT"); and
WHEREAS, pursuant to the terms of a letter agreement between Nittetsu
and the Coating Company, executed by Nittetsu on November 24, 1998 and by the
Coating Company on the following day, the provisions of the Nittetsu
Distribution Agreement were amended to provide that the Nittetsu Distribution
Agreement would terminate only after written notice was given by either Nittetsu
or the Coating Company to the other party; and
WHEREAS, Wheeling-Pittsburgh and the Coating Company desire for
Wheeling-Pittsburgh, through the Steel Company, to be appointed as the sole
distributor of the products of the Coating Company and for the Nittetsu
Distribution Agreement to terminate; and
WHEREAS, since Nittetsu's sole reason for its purchase of the preferred
stock of the Coating Company was to obtain the right to sell products of the
Coating Company pursuant to the Nittetsu Distribution Agreement, the
Shareholders' Agreement requires the Coating Company to repurchase Nittetsu's
shares of preferred stock within ninety(90) days after termination of the
Nittetsu Distribution Agreement by the Coating Company; and
WHEREAS, at the present time the Coating Company does not have
sufficient funds to repurchase Nittetsu's preferred stock and the Coating
Company, Wheeling-Pittsburgh and Xxxx Xxxx desire for Nittetsu to agree to the
termination of the Nittetsu Distribution Agreement and to delay the repurchase
of its shares of preferred stock by the Coating Company as provided in this
Agreement; and
WHEREAS, Nittetsu is willing to consent to the termination of the
Nittetsu Distribution Agreement and to delay the repurchase of its shares of
preferred stock of the Coating Company provided that (a) the Steel Company,
appoints Nittetsu as its sales representative pursuant to a written agreement
executed simultaneously herewith, to allow Nittetsu to sell at least 62,500 net
tons per year of Coating Company products purchased by the Steel Company from
the Coating Company; and (b) the Shareholders and the Coating Company agree to
amend the Shareholders' Agreement to require the repurchase of Nittetsu's
preferred stock by the Coating Company upon termination of said sales
representation agreement (except if terminated as a result of a breach of such
agreement by Nittetsu, as provided in section 4 of this Agreement) with the
Steel Company, and upon the terms and conditions contained in this Agreement.
-2-
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and desiring to be legally
bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise defined in this Agreement,
capitalized terms used in this Agreement shall have the meanings ascribed to
them in the Shareholders' Agreement.
2. TERMINATION OF NITTETSU DISTRIBUTION AGREEMENT AND ASSIGNMENT
AND ASSUMPTION OF PENDING ORDERS: Nittetsu and the Coating Company hereby
covenant and agree that the Nittetsu Distribution Agreement shall terminate as
to further obligations of Nittetsu and the Coating Company for the future sale
of Coating Company products and neither party shall have any further obligations
to each other except that the Nittetsu Distribution Agreement shall remain in
force and effect to govern all sales and purchases of Coating Company products
which: (a) occurred and were completed prior to such termination; or (b) relate
to any pending customer orders for products from the Coating Company. Nittetsu
hereby agrees that, upon the commencement of its sales representation agreement
with the Steel Company and termination of the Nittetsu Distribution Agreement,
all orders then pending with the Coating Company for. purchase and sale of
products to "Specified Accounts" or to "Export Customers" (as those terms are
defined in the Sales Representation Agreement described hereinbelow") which have
not yet been invoiced to said customers by Nittetsu (referred to herein as the
"NITTETSU PENDING ORDERS") shall be assigned to and assumed by the Steel
Company. In the event that any orders from said "Specified Accounts" or "Export
Customers" have been only partially performed by shipping of goods to said
customers, the portion of such orders upon which goods have not yet been
delivered and invoiced to said customers shall be treated by the parties as
Nittetsu Pending Orders and the portion upon which goods which have been
delivered and invoiced to said customers by Nittetsu shall be treated as if it
they are separate orders and not Nittetsu Pending Orders. By signing this
Agreement, the Steel Company hereby acknowledges and agrees that it shall assume
and satisfy all the Nittetsu Pending Orders. The Coating Company hereby
acknowledges and agrees to said assignment by Nittetsu and assumption by the
Steel Company of the Nittetsu Pending Orders, which the parties agree shall
constitute a novation, and the Coating Company agrees that it shall look solely
to the Steel Company for full payment and performance of the Nittetsu Pending
Orders. Nittetsu hereby agrees that it shall provide a written list to the Steel
Company of all of the Nittetsu Pending Orders as of the date of execution of the
Sales
-3-
Representation Agreement. Nittetsu shall remain obligated to the Coating
Company on all orders pending with the Coating Company other than the Nittetsu
Pending Orders.
3. SALES REPRESENTATION AGREEMENT: Simultaneous with the
execution of this Agreement, Wheeling-Pittsburgh hereby covenants and agrees to
cause the Steel Company, and the Steel Company hereby covenants and agrees, to
appoint Nittetsu as its exclusive sales representative for "Specified Accounts"
and its nonexclusive sales representative for export customers and makes the
other agreements as set forth in the sales representation agreement dated as of
January 1, 1999 between the Steel Company and Nittetsu (referred to herein as
the "SALES REPRESENTATION AGREEMENT"). Wheeling-Pittsburgh, the Steel Company
and the Coating Company further agree to coordinate their efforts to purchase
black plate from foreign sources with, and shall give, Nittetsu reasonable
opportunity to submit bids for sale of black plate from foreign sources pursuant
to section 1(c) of the Sales Representation Agreement.
4. REPURCHASE OF NITTETSU PREFERRED STOCK: Notwithstanding the
provisions of the Shareholders' Agreement, the Coating Company shall buy back
and Nittetsu shall sell Nittetsu's Preferred Shares within ninety (90) days
after the termination of the Sales Representation Agreement, provided that such
termination was not the result of a breach by Nittetsu under section 4(a) of the
Sales Representation Agreement. If termination of the Sales Representation
Agreement was the result of a breach by Nittetsu under section 4(a) thereof the
Coating Company shall be obligated to buy back Nittetsu's Preferred Shares on
September 28, 2004. Payment for Nittetsu's Preferred Shares by the Coating
Company shall be in cash and shall be for a price equal to the initial purchase
price plus accumulated dividends and interest payable in accordance with Article
4 of the Coating Company's Articles of Incorporation, including any dividends
which might be owing for the portion of the Coating Company's fiscal year then
elapsed.
5. INABILITY TO REPURCHASE NITTETSU PREFERRED SHARES: In the
event that the Coating Company is obligated to repurchase Nittetsu's Preferred
Shares pursuant to section 4 of this Agreement but is unable to repurchase said
shares for any reason, then the Coating Company, Wheeling-Pittsburgh and Xxxx
Xxxx agree that they shall use their best efforts to take such steps as are
appropriate or necessary in order to enable the Coating Company lawfully to
purchase and to pay for all of Nittetsu's Preferred Shares. Such efforts may
include, without limitation, the Shareholders voting their respective common
stock to reduce the stated capital of the Coating
-4-
Company, satisfying any creditors objecting to said repurchase and/or obtaining
a current appraisal of the Coating Company's assets at fair market value.
Nothing herein, however, shall require Xxxx Xxxx or Wheeling-Pittsburgh to: (i)
invest additional capital in the Coating Company; (ii) guaranty additional
indebtedness of the Coating Company; or (iii) take any actions which would
violate the terms of any loan agreement, financing agreement or other material
contract to which Wheeling-Pittsburgh or Xxxx Xxxx may be a party, over the
objection of the other party to such agreement or contract after
Wheeling-Pittsburgh's or Xxxx Xxxx'x written request for approval.
Wheeling-Pittsburgh and Xxxx Xxxx agree to promptly give Nittetsu a copy of such
written request for approval and any written objection by said other party under
subsection (iii) of this section. Neither Wheeling-Pittsburgh nor Xxxx Xxxx
shall be required to make any payment or material change to any such agreement
or contract to obtain the approval of said other party under sub-section (iii)
of this section. The undersigned officers of Wheeling Pittsburgh and Xxxx Xxxx
represent that to their actual knowledge, as of the date of the execution of
this Agreement, they have no knowledge of any such agreements with third parties
which would be violated by redemption of Nittetsu's Preferred Stock or the
reduction in the stated capital of the Coating Company, although they have not
conducted a search for any such agreements. If despite such best efforts the
Coating Company, nevertheless, is unable to repurchase all of Nittetsu's
Preferred Stock, then:
(a) the Coating Company shall repurchase as many shares of
Nittetsu's Preferred Stock as it is lawfully permitted to buy and the
remainder of Nittetsu's Preferred Shares shall continue to be owned by
Nittetsu, together with the rights and benefits contained in the
Coating Company's Articles of Incorporation, By-Laws and the
Shareholders' Agreement, as amended by this Agreement;
(b) upon the Coating Company thereafter obtaining sufficient
surplus or other funds to lawfully purchase some or all of the
remainder of Nittetsu's Preferred Shares, the Coating Company shall
purchase as many of Nittetsu's Preferred Shares as it is permitted to
repurchase from time to time;
(c) until all of Nittetsu's Preferred Shares are repurchased by
the Coating Company, no dividends or other distributions of any kind
shall be paid by the Coating Company to any of the holders of its
Common Shares (which shall not, however, prohibit payment of accounts
payable to Wheeling-Pittsburgh incurred by the Coating Company in the
ordinary course of business); and
-5-
(d) until all of Nittetsu's Preferred Shares are repurchased by
the Coating Company, the Sales Representation Agreement shall, at
Nittetsu's option, be reinstated and remain in full force and effect
and may only be terminated by Nittetsu, unless the Sales Representation
Agreement has been or shall thereafter be terminated due to breach by
Nittetsu pursuant to section 4(a) thereof.
6. CONSENT OF SHAREHOLDERS TO COATING COMPANY ACTIONS: The
Shareholders hereby consent and agree to the termination of the Nittetsu
Distribution Agreement and to the terms and provisions contained in this
Agreement to be performed by the Coating Company. The officers and erectors of
the Coating Company are hereby authorized and directed to authorize, and to
execute and deliver, this Agreement and any and all other documents or
instruments necessary or convenient to accomplish the purposes set forth in this
Agreement and to cause the Coating Company to perform in accordance with the
terms of this Agreement. An original executed copy of this Agreement shall be
filed with the minutes of the meetings of the Shareholders and shall have the
force and effect of a resolution adopted by unanimous consent of the
Shareholders of the Coating Company.
7. GOVERNING PROVISIONS: Except to the extent that the provisions
of this Agreement supplement, modify or amend the Shareholders' Agreement, the
covenants, rights and remedies, and definitions contained in the Shareholders'
Agreement shall continue unmodified in full force and effect. In the event of an
inconsistency between the terms and provisions of this Agreement and those of
the Shareholders' Agreement, the terms of this Agreement shall prevail.
8. BINDING EFFECT: This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective heirs, successors and
assigns.
9. JOINT EFFORT: Preparation of this Agreement has been a joint
effort of the Parties, and the resulting document shall not be construed more
severely against one of the Parties than the other.
10. ENTIRE AGREEMENT: This Agreement contains the entire agreement
between the Parties with respect to the matters set forth herein and supersedes
all prior discussions, negotiations and agreements, whether oral or written. No
amendment of this Agreement shall be valid or binding unless made in writing and
signed by all of the Parties. This Agreement may be
-6-
executed in one or more counterparts, and when so executed, each counterpart
shall be deemed an original and all of which shall constitute one and the same
instrument.
11. GOVERNING LAW: This Agreement shall be governed by, and
construed in accordance with the laws of the State of Ohio, without regard to
conflict of laws rules.
12. ARBITRATION: The Parties each agree that any controversy or
claim arising out of or relating to this Agreement, or the breach thereof, shall
be settled by arbitration in accordance with the arbitration provisions in
Section 11.16 of the Shareholders' Agreement.
-7-
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its duly authorized officer to be effective as of the date first
above written.
Signed, Sealed and Delivered
In the Presence Of: XXXX XXXX TINPLATE AMERICA CORP.
[signature illegible] By: /s/ Xxxx X. Xxxx
-------------------------------- ------------------------------------
Its
Duly Authorized
Date Signed: July 13, 1999
WHEELING-PITTSBURGH CORPORATION
[signature illegible] By: /s/ Xxxx Xxxxx
-------------------------------- ------------------------------------
Its Vice President
Duly Authorized
Date Signed: July 13, 1999
WHEELING-PITTSBURGH STEEL CORPORATION
[signature illegible] By: /s/ Xxxx Xxxxx
-------------------------------- ------------------------------------
Its Vice President
Duly Authorized
Date Signed: July 13, 1999
-8-
Signed, Sealed and Delivered
In the Presence Of: NIPPON STEEL TRADING AMERICA, INC.
(formerly known as NITTETSU SHOJI AMERICA,
INC.)
[signature illegible] By: /s/ Xxxxx Xxxxx
------------------------------ -------------------------------------
Xxxxx Xxxxx
Its President
Duly Authorized
Date Signed: 7/15/99
OHIO COATINGS COMPANY
[signature illegible] By: /s/ Xxxx X. XxXxx
------------------------------ --------------------------------------
Its President/CEO
Duly Authorized
Date Signed: 7/13/99
STATE OF ,
COUNTY OF:
I, the undersigned officer, Notary Public of said County and State, do
certify that S.R. Xxxx, who signed the foregoing agreement for XXXX XXXX
TINPLATE AMERICA CORP., has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Yorkville, Ohio this 13th day
of July, 1999.
/s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Notary Public
My Commission Expires: 8/12/01
-9-
STATE OF ,
COUNTY OF:
I, the undersigned officer, Notary Public of said County and State, do
certify that X.X. Xxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH CORPORATION, has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 13th day of
July, 1999.
/s/ Xxxxxxxx Xxxx Xxxxx
------------------------------------------
Notary Public
My Commission Expires: 8/24/04
STATE OF ,
COUNTY OF:
I, the undersigned officer, Notary Public of said County and State, do
certify that X.X. Xxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH STEEL CORPORATION, has this day acknowledged that he
executed said agreement as the duly authorized free act and deed of said
corporation.
Given under my hand and official seal at Wheeling, WV this 13th day of
July, 1999.
/s/ Xxxxxxxx Xxxx Xxxxx
------------------------------------------
Notary Public
My Commission Expires: 8/24/04
-10-
STATE OF ,
COUNTY OF:
I, the undersigned officer, Notary Public of said County and State, do
certify that Xxxxx Xxxxx, who signed the foregoing agreement for NIPPON STEEL
TRADING AMERICA, INC. (formerly known as NITTETSU SHOJI AMERICA, INC.), has this
day acknowledged that he executed said agreement as the duly authorized free act
and deed of said corporation.
Given under my hand and official seal at La Costa, Carlsbad, California
this 15th day of July, 1999.
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Notary Public
My Commission Expires: July 22, 2002
STATE OF ,
COUNTY OF:
I, the undersigned officer, Notary Public of said County and State, do
certify that Xxxx X. XxXxx, who signed the foregoing agreement for OHIO COATINGS
COMPANY, has this day acknowledged that he executed said agreement as the duly
authorized free act and deed of said corporation.
Given under my hand and official seal at Yorkville, Ohio this 13th day
of July, 1999.
/s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Notary Public
My Commission Expires: 8/12/01
-11-
FIFTH AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
BETWEEN XXXX XXXX TINPLATE AMERICA CORP.,
NIPPON STEEL TRADING AMERICA, INC.
(FORMERLY KNOWN AS NITTETSU SHOJI AMERICA, INC.),
WHEELING PITTSBURGH CORPORATION AND
OHIO COATINGS COMPANY
THIS AGREEMENT ("this Agreement") made as of this 1st day of April,
2001 by and among XXXX XXXX TINPLATE AMERICA CORP. ("XXXX XXXX") a California
corporation WHEELING-PITTSBURGH CORPORATION ("WHEELING-PITTSBURGH"), a Delaware
corporation, NIPPON STEEL TRADING AMERICA, INC. (formerly known as NITTETSU
SHOJI AMERICA, INC.) ("NITTETSU"), a California corporation, and OHIO COATINGS
COMPANY (the "COATING COMPANY"), an Ohio corporation.
RECITALS:
WHEREAS, Wheeling-Pittsburgh and Xxxx Xxxx are the sole owners of all
of the outstanding shares of the common stock and Nittetsu is the sole owner of
all of the outstanding shares of the preferred stock of the Coating Company and
said stockholders (collectively the "SHAREHOLDERS") are the sole shareholders of
the Coating Company; and
WHEREAS, the Shareholders and the Coating Company are parties to an
agreement titled "Close Corporation and Shareholders' Agreement", dated as of
March 24, 1994, as amended from time to time (referred to herein, together with
all amendments thereto, as the "SHAREHOLDERS' AGREEMENT") relating to the
internal affairs and operations of the Coating Company, the relations among the
Shareholders, directors, officers and other holders of shares of stock of the
Coating Company, and the issuance, sale, transfer, distribution and encumbrances
of the shares of stock of the Coating Company and the redemption of the
preferred stock owned by Nittetsu; and
WHEREAS, the latest amendment to the Shareholders' Agreement is an
agreement titled "Fourth Amendment to Close Corporation and Shareholders'
Agreement Between Xxxx Xxxx Tinplate America Corp., Nippon Steel Trading
America, Inc. (formerly known as Nittetsu Shoji
America, Inc.), Wheeling-Pittsburgh Corporation and Ohio Coatings Company" dated
as of July 15, 1999 (referred to herein as the "FOURTH AMENDMENT TO
SHAREHOLDERS' AGREEMENT"); and
WHEREAS, Wheeling-Pittsburgh, through its wholly-owned subsidiary
Wheeling-Pittsburgh Steel Corporation (referred to herein as "THE STEEL
COMPANY") is the sole distributor of the products of the Coating Company,
pursuant to the terms of a distribution agreement by the Steel Company and the
Coating Company dated as of January 1, 1999 (the Distribution Agreement between
the Coating Company and the Steel Company is referred to herein as the "STEEL
COMPANY DISTRIBUTION AGREEMENT"); and
WHEREAS, pursuant to the terms of an agreement between Nittetsu and the
Steel Company dated as of January 1, 1999 and executed by the Steel Company on
July 13, 1999 and by Nittetsu on July 15, 1999 (referred to herein as the
"NITTETSU SALES REPRESENTATION AGREEMENT"), Nittetsu was appointed as the
exclusive sales representative for sale of the products of the Coating Company
to customers specified in said agreement; and
WHEREAS, Wheeling-Pittsburgh and the Coating Company desire for the
Nittetsu Sales Representation Agreement to be terminated and for Nittetsu to be
appointed as the sole distributor of products of the Coating Company to certain
customers specified therein, and having the right, at Nittetsu's election, to
purchase approximately seventy percent (70%) of the production of products by
the Coating Company; and
WHEREAS, since Nittetsu's sole reason for its purchase of the preferred
stock of the Coating Company was to obtain the right to sell products of the
Coating Company, the Fourth Amendment to Shareholders' Agreement requires the
Coating Company to repurchase Nittetsu's shares of preferred stock within ninety
(90) days after the termination of the Nittetsu Sales Representation Agreement
by the Coating Company; and
WHEREAS, at the present time the Coating Company does not have
sufficient funds to repurchase Nittetsu's preferred stock and the Coating
Company, Wheeling-Pittsburgh and Xxxx Xxxx desire for Nittetsu to agree to the
termination of the Nittetsu Sales Representation
-2-
Agreement and to delay the repurchase of its shares of preferred stock by the
Coating Company as provided; in this Agreement; and
WHEREAS, Nittetsu is willing to consent to the termination of the
Nittetsu Sales Representation Agreement and to delay the repurchase of its
shares of preferred stock of the Coating Company provided that (a) OCC appoints
Nittetsu as a distributor of approximately seventy percent (70%) of the
production of the products of the Coating Company for sale to specified
customers, as set forth in the written Distribution Agreement attached to this
Agreement marked "EXHIBIT A" (the "NITTETSU DISTRIBUTION AGREEMENT"); and (b)
the Shareholders and the Coating Company agree to amend the Shareholders'
Agreement to require the repurchase of Nittetsu's preferred stock by the Coating
Company upon termination of said Nittetsu Distribution Agreement, in lieu of the
references in the Fourth Amendment to Shareholders' Agreement to the Nittetsu
Sales Representation Agreement, and upon the terms and conditions contained in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and desiring to be legally
bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise defined in this Agreement,
capitalized terms used in this Agreement shall have the meanings ascribed to
them in the Shareholders' Agreement.
2. TERMINATION OF STEEL COMPANY DISTRIBUTION AGREEMENT AND
NITTETSU SALES REPRESENTATION AGREEMENT AND ASSIGNMENT OF PENDING ORDERS: The
Steel Company and Nittetsu hereby covenant and agree that, pursuant to the terms
and conditions in the Nittetsu Distribution Agreement: (i) the Nittetsu Sales
Representation Agreement shall terminate as to further obligations of the
parties thereunder; and (ii) on April 1, 2001 the Steel Company shall assign to
Nittetsu certain pending orders for sale of Coating Company products to
customers of Nittetsu under the Nittetsu Sales Representation Agreement,
pursuant to the terms and conditions in the Nittetsu Distribution Agreement.
-3-
3. NITTETSU DISTRIBUTION AGREEMENT: Simultaneous with the
effective date of this Agreement the Coating Company hereby covenants and agrees
to appoint Nittetsu as its distributor for sale of Coating Company products to
specified "Customers" and to make the other agreements, as set forth in the
Nittetsu Distribution Agreement between the Coating Company and Nittetsu
attached to this Agreement marked "EXHIBIT A".
4. REPURCHASE OF NITTETSU PREFERRED STOCK: Notwithstanding the
provisions of the Shareholders' Agreement, the Coating Company shall buy back
and Nittetsu shall sell Nittetsu's Preferred Shares as set forth in section 4 of
the Fourth Amendment to Shareholders' Agreement, with the tern "Nittetsu
Distribution Agreement" (as that term is defined in this Agreement) substituted
in said section for the words "Sales Representation Agreement", as if originally
set forth therein.
5. INABILITY TO REPURCHASE NITTETSU PREFERRED SHARES:
Notwithstanding the provisions of the Shareholders' Agreement, in the event that
the Coating Company is obligated to repurchase Nittetsu's Preferred Shares
pursuant to section 4 of this Agreement (and the corresponding amendment to the
Fourth Amendment to Shareholders' Agreement) but is unable to repurchase said
shares for any reason, then the Coating Company, Wheeling-Pittsburgh and Xxxx
Xxxx agree that the rights and obligations of the parties shall be as set forth
in section 5 of the Fourth Amendment to Shareholders' Agreement, with the term
"Nittetsu Distribution Agreement" (as that term is defined in this Agreement)
substituted in said section for the words "Sales Representation Agreement", as
if originally set forth therein, except as follows:
(a) Subsection (d) of section 5 of the Fourth Amendment to
Shareholders' Agreement is hereby amended to read as follows:
"(d) until all of Nittetsu's Preferred Shares are repurchased
by the Coating Company, and in the event that the Distribution
Agreement has not been terminated by WPSC pursuant to Sections
4(a)(ii), 4(a)(iv) or 4(c), then: (i) at
-4-
Nittetsu's option the Nittetsu Distribution Agreement shall be
reinstated and remain in full force and effect and may only be
terminated by Nittetsu; or (ii) if under Sections 4(d) and
4(f) of the Nittetsu Distribution Agreement Nittetsu has a
right to enter into a direct distribution agreement with the
Coating Company, Nittetsu shall have the right to enter into
and continue such direct distribution agreement with Coating
Company, , subject to the provisions contained in Sections
4(d), 4(e) and 4(f) of the Distribution Agreement."
(b) A new subsection (e) is hereby added to section 5 of the
Fourth Amendment to Shareholders' Agreement, as follows:
"(e) until all of Nittetsu's Preferred Shares are repurchased
by the Coating Company, Nittetsu shall have the right, at
Nittetsu's election, to appoint one member of the Board of
Directors, which member shall have all of the rights of a
Director to attend meetings and to obtain information but
shall have no power to vote."
6. CONSENT OF SHAREHOLDERS TO COATING COMPANY ACTIONS: The
Shareholders hereby consent and agree to the termination of the Steel Company
Distribution Agreement and of the Nittetsu Sales Representation Agreement and to
the terms and provisions contained in this Agreement to be performed by the
Coating Company. The officers and directors of the Coating Company are hereby
authorized and directed to authorize, and to execute and deliver, this Agreement
and any and all other documents or instruments necessary or convenient to
accomplish the purposes set forth in this Agreement and to cause the Coating
Company to perform in accordance with the terms of this Agreement. An original
executed copy of this Agreement shall be filed with the minutes of the meetings
of the Shareholders and shall have the force and effect of a resolution adopted
by unanimous consent of the Shareholders of the Coating Company.
-5-
7. GOVERNING PROVISIONS: Except to the extent that the provisions
of this Agreement supplement, modify or amend the Shareholders' Agreement, the
covenants, rights and remedies, and definitions contained in the Shareholders'
Agreement shall continue unmodified in full force and effect. In the event of an
inconsistency between the terms and provisions of this Agreement and those of
the Shareholders' Agreement, the terms of this Agreement shall prevail.
8. BINDING EFFECT: This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective heirs, successors and
assigns.
9. JOINT EFFORT: Preparation of this Agreement has been a joint
effort of the Parties, and the resulting document shall not be construed more
severely against one of the Parties than the other.
10. ENTIRE AGREEMENT: This Agreement contains the entire agreement
between the Parties with respect to the matters set forth herein and supersedes
all prior discussions, negotiations and agreements, whether oral or written. No
amendment of this Agreement shall be valid or binding unless made in writing and
signed by all of the Parties. This Agreement may be executed in one or more
counterparts, and when so executed, each counterpart shall be deemed an original
and all of which shall constitute one and the same instrument.
11. GOVERNING LAW: This Agreement shall be governed by, and
construed in accordance with the laws of the State of Ohio, without regard to
conflict of laws rules.
12. ARBITRATION: The Parties each agree that any controversy or
claim arising out of or relating to this Agreement, or the breach thereof, shall
be settled by arbitration in accordance with the arbitration provisions in
Section 11.16 of the Shareholders' Agreement.
-6-
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its duly authorized officer to be effective as of the date first
above written.
Signed, Sealed and Delivered
In the Presence Of: XXXX XXXX TINPLATE AMERICA CORP.
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxx X. Xxxx
------------------------------ ------------------------------------------
Its Authorized Agent
Duly Authorized
Date Signed: 4/1/01
WHEELING-PITTSBURGH CORPORATION
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------ -----------------------------------------
Its VP, Secretary & Treasurer
Duly Authorized
Date Signed: 4/1/01
WHEELING-PITTSBURGH STEEL
CORPORATION
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ----------------------------------------
Its Sr. VP & Chief Commercial Officer
Duly Authorized
Date Signed: 4/1/01
-7-
Signed, Sealed and Delivered
In the Presence Of: NIPPON STEEL TRADING AMERICA, INC.
(formerly known as NITTETSU SHOJI AMERICA,
INC.)
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxx
------------------------------ -----------------------------------------
Xxxxx Xxxxx
Its President
Duly Authorized
Date Signed: 3/27/01
OHIO COATINGS COMPANY
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxx X. XxXxx
------------------------------ ---------------------------------------------
Its President/CEO
Duly Authorized
Date Signed: 0/0/00
XXXXX XX Xxxx Xxxxxxxx,
XXXXXX XX Xxxx:
I the undersigned officer, Notary Public of said County and State, do
certify that S.R. Xxxx, who signed the foregoing agreement for XXXX XXXX
TINPLATE AMERICA CORP., has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 2nd day of
April, 2001.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Notary Public -- My Commission Expires: 10/28/07
-0-
XXXXX XX Xxxx Xxxxxxxx,
XXXXXX XX Xxxx:
I the undersigned officer, Notary Public of said County and State, do
certify that Xxxxxx X. Xxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH CORPORATION, has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 2nd day of
April, 2001.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Notary Public -- My Commission Expires: 10/28/07
XXXXX XX Xxxx Xxxxxxxx ,
XXXXXX XX Xxxx:
I the undersigned officer, Notary Public of said County and State, do
certify that Xxxxxxx X. Xxxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH STEEL CORPORATION, has this day acknowledged that he
executed said agreement as the duly authorized free act and deed of said
corporation.
Given under my hand and official seal at Wheeling, WV this 2nd day of
April, 2001.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Notary Public -- My Commission Expires: 10/28/07
-9-
STATE OF California,
COUNTY OF Los Angeles: SEE ATTACHED FORM
I the undersigned officer, Notary Public of said County and State, do
certify that ________________________, who signed the foregoing agreement for
NIPPON STEEL TRADING AMERICA, INC. (formerly known as NITTETSU SHOJI AMERICA,
INC.) has this day acknowledged that he executed said agreement as the duly
authorized free act and deed of said corporation.
Given under my hand and official seal at Los Angeles, California this
27th day of March 2001.
Notary Public -- My Commission Expires:
STATE OF West Virginia,
COUNTY OF Ohio:
I the undersigned officer, Notary Public of said County and State, do
certify that Xxxx XxXxx, who signed the foregoing agreement for OHIO COATINGS
COMPANY, has this day acknowledged that he executed said agreement as the duly
authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 2nd day of
April, 2001.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Notary Public -- My Commission Expires: 10/28/07
-00-
XXXXXXXXXX XXX-XXXXXXX XXXXXXXXXXXXXX
Xxxxx of California
County of Los Angeles
On 3/27/01 before me, Xxxxx Xxxxxxx, Notary Public ,
NAME, TITLE OF OFFICER - E.G. "XXXX XXX, NOTARY PUBLIC"
personally appeared Xxxxx Xxxxx
NAME(S) OF SIGNER(S)
! personally known to me -OR- [X] proved to me on the basis of satisfactory
evidence to be the person whose name is
subscribed to the within instrument and
acknowledged to me that he executed the same
in his authorized capacity, and that by his
signature on the instrument the person, or
the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxx Xxxxxxx
--------------------------------------------
SIGNATURE OF NOTARY
___________________________________ OPTIONAL ___________________________________
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
! INDIVIDUAL
! CORPORATE OFFICER
5th Amend...
----------------------------------- -------------------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
-----------------------------------
TITLE(S) 10+ Ex A
------------------------------------
NUMBER OF PAGES
! PARTNER(S) ! LIMITED
! GENERAL
! ATTORNEY-IN-FACT
! TRUSTEE(S)
! GUARDIAN/CONSERVATOR ____________________________________
! OTHER: ___________________ DATE OF DOCUMENT
____________________________________
____________________________________ _____________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
____________________________________ _____________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
____________________________________
SIXTH AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
BETWEEN XXXX XXXX TINPLATE AMERICA CORP.,
NIPPON STEEL TRADING AMERICA, INC.
(FORMERLY KNOWN AS NITTETSU SHOJI AMERICA, INC.),
WHEELING-PITTSBURGH CORPORATION AND
OHIO COATINGS COMPANY
THIS AGREEMENT ("THIS AGREEMENT") made as of this 1st day of January,
2003 by and among XXXX XXXX TINPLATE AMERICA CORP. ("XXXX XXXX") a California
corporation, WHEELING-PITTSBURGH CORPORATION ("WHEELING-PITTSBURGH"), a Delaware
corporation, NIPPON STEEL TRADING AMERICA, INC. (formerly known as NITTETSU
SHOJI AMERICA, INC.) ("NITTETSU"), a California corporation, and OHIO COATINGS
COMPANY (the "COATING COMPANY"), an Ohio corporation.
RECITALS:
WHEREAS, Wheeling-Pittsburgh and Xxxx Xxxx are the sole owners of all
of the outstanding shares of the common stock and Nittetsu is the sole owner of
all of the outstanding shares of the preferred stock of the Coating Company and
said stockholders (collectively the "Shareholders") are the sole shareholders of
the Coating Company; and
WHEREAS, the Shareholders and the Coating Company are parties to an
agreement titled "Close Corporation and Shareholders' Agreement", dated as of
March 24, 1994, as amended from time to time (referred to herein, together with
all amendments thereto, as the "Shareholders' Agreement") relating to the
internal affairs and operations of the Coating Company, the relations among the
Shareholders, directors, officers and other holders of shares of stock of the
Coating Company, and the issuance, sale, transfer, distribution and encumbrances
of the shares of stock of the Coating Company and the redemption of the
preferred stock owned by Nittetsu; and
WHEREAS, the latest amendment to the Shareholders' Agreement is an
agreement titled "Fifth Amendment to Close Corporation and Shareholders'
Agreement Between Xxxx Xxxx
Tinplate America Corp., Nippon Steel Trading America, Inc. (formerly known as
Nittetsu Shoji America, Inc.), Wheeling-Pittsburgh Corporation and Ohio Coatings
Company" dated as of April 1, 2001 (referred to herein as the "Fifth Amendment
to Shareholders' Agreement"); and
WHEREAS, Wheeling-Pittsburgh, through its wholly-owned subsidiary
Wheeling-Pittsburgh Steel Corporation (referred to herein as "the Steel
Company") is currently the sole distributor of the products of the Coating
Company, pursuant to the terms of a distribution agreement by the Steel Company
and the Coating Company dated as of January 1, 1999 (the Distribution Agreement
between the Coating Company and the Steel Company is referred to herein as the
"Steel Company Distribution Agreement"); and
WHEREAS, pursuant to the terms of an agreement between Nittetsu and the
Steel Company dated as of April 1, 2001 (referred to herein as the "Nittetsu
Sub-Distribution Agreement"), Nittetsu was appointed by WPSC as the exclusive
distributor for sale of the products of the Coating Company to customers
specified in said agreement; and
WHEREAS, Wheeling-Pittsburgh and the Coating Company desire for the
Nittetsu Sub-Distribution Agreement to be terminated and for Nittetsu to enter
into a distribution agreement directly with the Coating Company to appoint
Nittetsu as the sole distributor of products of the Coating Company to certain
customers specified therein and giving the right, at Nittetsu's election, to
purchase approximately seventy percent (70%) of the production of products by
the Coating Company, as set forth in the written Distribution Agreement attached
to this Agreement marked "Exhibit A" (referred to herein as the "Nittetsu OCC
Distribution Agreement"); and
WHEREAS, Nittetsu is willing to consent to the termination of the
Nittetsu Sub-Distribution Agreement provided that: (a) the Coating Company
appoints Nittetsu as a distributor of approximately seventy percent (70%) of the
production of the products of the Coating Company for sale to specified
customers set forth in the Nittetsu OCC Distribution Agreement;
-2-
and (b) the Shareholders and the Coating Company agree to amend the
Shareholders' Agreement upon the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and desiring to be legally
bound hereby, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined in this Agreement,
capitalized terms used in this Agreement shall have the meanings ascribed to
them in the Shareholders' Agreement.
2. Termination of Nittetsu Sub-Distribution Agreement: The Steel
Company and Nittetsu hereby covenant and agree that, pursuant to the terms and
conditions in the Nittetsu OCC Distribution Agreement the Nittetsu
Sub-Distribution Agreement shall terminate as to further obligations of the
parties thereunder, pursuant to the terms and conditions in the Nittetsu OCC
Distribution Agreement.
3. Nittetsu OCC Distribution Agreement: Simultaneous with the
effective date of this Agreement, the Coating Company hereby covenants and
agrees to appoint Nittetsu as its distributor for sale of Coating Company
products to specified "Customers" and to make the other agreements as set forth
in the Nittetsu OCC Distribution Agreement between the Coating Company and
Nittetsu attached to this Agreement marked "Exhibit A".
4. Repurchase of Nittetsu Preferred Stock: Notwithstanding the
provisions of the Shareholders' Agreement, the Coating Company shall buy back
and Nittetsu shall sell Nittetsu's Preferred Shares as set forth in section 4 of
the Fourth Amendment to Shareholders' Agreement, with the term "Nittetsu OCC
Distribution Agreement" (as that term is defined in this Agreement) substituted
in said section for the words "Nittetsu Distribution Agreement" (as amended in
the Fifth Amendment to Shareholders' Agreement), as if originally set forth
therein..
5. Inability to Repurchase Nittetsu Preferred Shares:
Notwithstanding the provisions of the Shareholders' Agreement, in the event that
the Coating Company is obligated to repurchase
-3-
Nittetsu's Preferred Shares pursuant to section 4 of this Agreement (and the
corresponding amendment to the Fourth Amendment to Shareholders' Agreement) but
is unable to repurchase said shares for any reason, then the Coating Company,
Wheeling-Pittsburgh and Xxxx Xxxx agree that the rights and obligations of the
parties shall be as set forth in section 5 of the Fifth Amendment to
Shareholders' Agreement, with the term "Nittetsu OCC Distribution Agreement" (as
that term is defined in this Agreement) substituted in said section for the
words "Nittetsu Distribution Agreement", as if originally set forth therein,
except as follows:
(a) Subsection (a) of section 5 of the Fifth Amendment to
Shareholders' Agreement is hereby amended to read as follows:
"(d) until all of Nittetsu's Preferred Shares are repurchased
by the Coating Company, and in the event that the Distribution
Agreement has not been terminated by OCC pursuant to Sections
4(a)(iii) or 4(c), then at Nittetsu's option the Nittetsu OCC
Distribution Agreement shall be reinstated and remain in full
force and effect and may only be terminated by Nittetsu."
6. Consent of Shareholders to Coating Company Actions: The
Shareholders hereby consent and agree to the amendment of the Steel Company
Distribution Agreement and of the Nittetsu Sub-Distribution Agreement and to the
terms and provisions contained in this Agreement to be performed by the Coating
Company. The officers and directors of the Coating Company are hereby authorized
and directed to authorize, and to execute and deliver, this Agreement and any
and all other documents or instruments necessary or convenient to accomplish the
purposes set forth in this Agreement and to cause the Coating Company to perform
in accordance with the terms of this Agreement. An original executed copy of
this Agreement shall be filed with the minutes of the meetings of the
Shareholders and shall have the force and effect of a resolution adopted by
unanimous consent of the Shareholders of the Coating Company.
-4-
7. Governing Provisions: Except to the extent that the provisions
of this Agreement supplement, modify or amend the Shareholders' Agreement, the
covenants, rights and remedies, and definitions contained in the Shareholders'
Agreement shall continue unmodified in full force and effect. In the event of an
inconsistency between the terms and provisions of this Agreement and those of
the Shareholders' Agreement, the terms of this Agreement shall prevail.
8. Binding Effect: This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective heirs, successors and
assigns.
9. Joint Effort: Preparation of this Agreement has been a joint
effort of the Parties, and the resulting document shall not be construed more
severely against one of the Parties than the other.
10. Entire Agreement: This Agreement contains the entire agreement
between the Parties with respect to the matters set forth herein and supersedes
all prior discussions, negotiations and agreements, whether oral or written. No
amendment of this Agreement shall be valid or binding unless made in writing and
signed by all of the Parties. This Agreement may be executed in one or more
counterparts, and when so executed, each counterpart shall be deemed an original
and all of which shall constitute one and the same instrument.
11. Governing Law: This Agreement shall be governed by, and
construed in accordance with the laws of the State of Ohio, without regard to
conflict of laws rules.
12. Arbitration: The Parties each agree that any controversy or
claim arising out of or relating to this Agreement, or the breach thereof, shall
be settled by arbitration in accordance with the arbitration provisions in
Section 11.16 of the Shareholders' Agreement.
-5-
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its duly authorized officer to be effective as of the date first
above written.
Signed, Sealed and Delivered
In the Presence Of: XXXX XXXX TINPLATE AMERICA CORP.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
--------------------------- ----------------------------------
Its Agent
Duly Authorized
Date Signed: 2/10/03
WHEELING-PITTSBURGH CORPORATION
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ----------------------------------
Its Vice President
Duly Authorized
Date Signed: 2/10/03
WHEELING-PITTSBURGH STEEL CORPORATION
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ----------------------------------
Its Vice President
Duly Authorized
Date Signed: 2/10/03
-6-
Signed, Sealed and Delivered
In the Presence Of: NIPPON STEEL TRADING AMERICA, INC.
(formerly known as NITTETSU SHOJI AMERICA,
INC.)
[signature illegible] By /s/ Susumu Tadenuma
---------------------------------------
Susumu Tadenuma
Its President
Duly Authorized
Date Signed: Feb 6., 2003
OHIO COATINGS COMPANY
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. XxXxx
--------------------------- ---------------------------------------
Its President & CEO
Duly Authorized
Date Signed: 2/10/03
STATE OF West Virginia,
COUNTY OF Ohio:
I the undersigned officer, Notary Public of said County and State, do
certify that S.R. Xxxx, who signed the foregoing agreement for XXXX XXXX
TINPLATE AMERICA CORP., has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 10th day of
Feb., 2003.
/s/ Xxxxx X. Xxxxxx
---------------------------
Notary Public -- My Commission Expires: 10/28/07
-0-
XXXXX XX Xxxx Xxxxxxxx,
XXXXXX XX Xxxx:
I the undersigned officer, Notary Public of said County and State, do
certify that Xxxx X. Xxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH CORPORATION, has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 10th day of
Feb., 2003.
/s/ Xxxxx X. Xxxxxx
---------------------------
Notary Public -- My Commission Expires: 10/28/07
STATE OF West Virginia,
COUNTY OF Ohio:
I the undersigned officer, Notary Public of said County and State, do
certify that Xxxx X. Xxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH STEEL CORPORATION, has this day acknowledged that he
executed said agreement as the duly authorized free act and deed of said
corporation.
Given under my hand and official seal at Wheeling, WV this 10th day of
Feb., 2003.
/s/ Xxxxx X. Xxxxxx
---------------------------
Notary Public -- My Commission Expires: 10/28/07
-8-
STATE OF California,
COUNTY OF Los Angeles:
I the undersigned officer, Notary Public of said County and State, do
certify that Susumu Tadenuma, who signed the foregoing agreement for NIPPON
STEEL TRADING AMERICA, INC. (formerly known as NITTETSU SHOJI AMERICA, INC.) has
this day acknowledged that he executed said agreement as the duly authorized
free act and deed of said corporation.
Given under my hand and official seal at Los Angeles, California this
6th day of February 2003.
/s/ Xxxxxxxxxx X. Xxxxxxx
---------------------------
Notary Public -- My Commission Expires: 00/00/0000
XXXXX XX Xxxx Xxxxxxxx,
XXXXXX XX Xxxx:
I the undersigned officer, Notary Public of said County and State, do
certify that Xxxx X. XxXxx, who signed the foregoing agreement for OHIO COATINGS
COMPANY, has this day acknowledged that he executed said agreement as the duly
authorized free act and deed of said corporation.
Given under my hand and official seal at Wheeling, WV this 10th day of
Feb., 2003.
/s/ Xxxxx X. Xxxxxx
---------------------------
Notary Public -- My Commission Expires: 10/28/07
-9-
SEVENTH AMENDMENT TO
CLOSE CORPORATION AND SHAREHOLDERS' AGREEMENT
BETWEEN XXXX XXXX TINPLATE AMERICA CORP.,
NIPPON STEEL TRADING AMERICA, INC.
(FORMERLY KNOWN AS NITTETSU SHOJI AMERICA, INC.),
WHEELING PITTSBURGH CORPORATION AND
OHIO COATINGS COMPANY
THIS AGREEMENT ("THIS AGREEMENT") made as of this 21st day of July, 2003
by and among XXXX XXXX TINPLATE AMERICA CORP. ("XXXX XXXX") a California
corporation, WHEELING-PITTSBURGH STEEL CORPORATION ("WHEELING-PITTSBURGH") (as
successor to WHEELING-PITTSBURGH CORPORATION ("WPC")), a Delaware corporation,
NIPPON STEEL TRADING AMERICA, INC. (formerly known as NITTETSU SHOJI AMERICA,
INC.) ("NITTETSU"), a California corporation, and OHIO COATINGS COMPANY (the
"COATING COMPANY"), an Ohio corporation.
RECITALS:
WHEREAS, Wheeling-Pittsburgh and Xxxx Xxxx are the sole owners of all of
the outstanding shares of the common stock and Nittetsu is the sole owner of all
of the outstanding shares of the preferred stock of the Coating Company and said
stockholders (collectively the "SHAREHOLDERS") are the sole shareholders of the
Coating Company; and
WHEREAS, the Shareholders and the Coating Company are parties to an
agreement titled "Close Corporation and Shareholders' Agreement", dated as of
March 24, 1994, as amended from time to time (referred to herein, together with
all amendments thereto, as the "SHAREHOLDERS' AGREEMENT") relating to the
internal affairs and operations of the Coating Company, the relations among the
Shareholders, directors, officers and other holders of shares of stock of the
Coating Company, and the issuance, sale, transfer, distribution and encumbrances
of the shares of stock of the Coating Company and the redemption of the
preferred stock owned by Nittetsu; and
- 1 -
WHEREAS, on July 15, 1999 the parties entered into an amendment to the
Shareholders' Agreement titled "Fourth Amendment to Close Corporation and
Shareholders' Agreement Between Xxxx Xxxx Tinplate America Corp., Nippon Steel
Trading America, Inc. (formerly known as Nittetsu Shoji America, Inc.), Wheeling
Pittsburgh Corporation and Ohio Coatings Company" (referred to herein as the
"FOURTH AMENDMENT TO SHAREHOLDERS' AGREEMENT"); and
WHEREAS, Wheeling-Pittsburgh desires to assign for collateral purposes the
common stock of the Company owned by it and desires for Xxxx Xxxx and Nittetsu
to consent and to agree to the transfers and other provisions, as set forth in
the agreement titled "Consent and Agreement" attached to this Agreement marked
"EXHIBIT A" (referred to herein as the "CONSENT AGREEMENT"); and
WHEREAS, Nittetsu is willing to consent to sign the Consent Agreement
provided that the parties agree as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, and desiring to be legally bound
hereby, the parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise defined in this Agreement, capitalized
terms used in this Agreement shall have the meanings ascribed to them in the
Shareholders' Agreement.
2. CONSENT TO PROVISIONS OF CONSENT AGREEMENT: The Shareholders hereby
consent and agree to the terms and provisions of the Consent Agreement.
3. REPURCHASE OF NITTETSU PREFERRED STOCK: The first sentence of Section 4
of the Fourth Amendment Agreement, as amended, is hereby further amended to
read, and to add an additional sentence thereto, as follows:
- 2 -
Notwithstanding the provisions of the Shareholders' Agreement, the Coating
Company shall buy back and Nittetsu shall sell Nittetsu's Preferred Shares
within ninety (90) days after the earlier of: (a) the election of
Nittetsu, by written notice to the Coating Company and the Common
Shareholders, upon the transfer by the "Escrow Agent" (as that term is
defined in the Consent and Agreement executed by the Stockholders and the
Coating Company dated July 21, 2003) of the interest of
Wheeling-Pittsburgh in the common stock of the Coating Company or in the
"Raw Material Supply Agreement" (as also defined in said Consent and
Agreement) to another party; or (b) termination of the Nittetsu OCC
Distribution Agreement, provided that such termination was not the result
of a breach by Nittetsu under section 4(a) of the Sales Representation
Agreement. In the event of an election by Nittetsu pursuant to subsection
(a) above and the purchase of Nittetsu's preferred shares and payment of
all accrued dividends and interest by the Coating Company, the Coating
Company shall have the option, by not less than thirty (30) days prior
written notice to Nittetsu, of terminating the Nittetsu OCC Distribution
Agreement effective on the last day of the "First Period" or the "Second
Period", as said terms are defined in the Nittetsu OCC Distribution
Agreement, in which said written notice is given by OCC to Nittetsu, as if
said date was the end of the Initial Term or any extension thereof set
forth in section 3(a) of the Nittetsu Distribution Agreement.
Notwithstanding such termination, the Nittetsu OCC Distribution Agreement
shall continue in effect after such termination with respect to all
contracts entered into by Nittetsu with customers, and accepted by OCC,
prior to such termination to supply Coating Company products to such
customers.
4. CONSENT OF SHAREHOLDERS TO COATING COMPANY ACTIONS: The Shareholders
hereby consent and agree to the terms and provisions contained in this Agreement
to be performed by the Coating Company. The officers and directors of the
Coating Company are hereby authorized and directed to authorize, and to execute
and deliver, this Agreement and any and all other documents or instruments
necessary or convenient to accomplish the purposes set
- 3 -
forth in this Agreement and to cause the Coating Company to perform in
accordance with the terms of this Agreement. An original executed copy of this
Agreement shall be filed with the minutes of the meetings of the Shareholders
and shall have the force and effect of a resolution adopted by unanimous consent
of the Shareholders of the Coating Company.
4. GOVERNING PROVISIONS: Except to the extent that the provisions of this
Agreement supplement, modify or amend the Shareholders' Agreement, the
covenants, rights and remedies, and definitions contained in the Shareholders'
Agreement shall continue unmodified in full force and effect. In the event of an
inconsistency between the terms and provisions of this Agreement and those of
the Shareholders' Agreement, the terms of this Agreement shall prevail.
5. BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, successors and
assigns.
6. JOINT EFFORT: Preparation of this Agreement has been a joint effort of
the Parties, and the resulting document shall not be construed more severely
against one of the Parties than the other.
7. ENTIRE AGREEMENT: This Agreement contains the entire agreement between
the Parties with respect to the matters set forth herein and supersedes all
prior discussions, negotiations and agreements, whether oral or written. No
amendment of this Agreement shall be valid or binding unless made in writing and
signed by all of the Parties. This Agreement may be executed in one or more
counterparts, and when so executed, each counterpart shall be deemed an original
and all of which shall constitute one and the same instrument.
8. GOVERNING LAW: This Agreement shall be governed by, and construed in
accordance with the laws of the State of Ohio, without regard to conflict of
laws rules.
- 4 -
9. ARBITRATION: The Parties each agree that any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration in accordance with the arbitration provisions in Section
11.16 of the Shareholders' Agreement.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its duly authorized officer to be effective as of the date first
above written.
Signed, Sealed and Delivered
In the Presence Of: XXXX XXXX TINPLATE AMERICA CORP.
/s/ Xxxxxx X. XxXxxxxx By: /s/ X. Xxx
----------------------------- --------------------------------
Its Director
Duly Authorized
Date Signed: 7/25/03
----------------
WHEELING-PITTSBURGH CORPORATION
[Signature illegible] By: /s/ Xxxx X. Xxxxxx
----------------------------- --------------------------------
Its EVP
Duly Authorized
Date Signed:
----------------
WHEELING-PITTSBURGH STEEL
CORPORATION
[Signature illegible] By: /s/ Xxxx X. Xxxxxx
----------------------------- --------------------------------
Its EVP
Duly Authorized
Date Signed:
----------------
- 5 -
Signed, Sealed and Delivered
In the Presence Of: NIPPON STEEL TRADING AMERICA, INC.
(formerly known as NITTETSU SHOJI
AMERICA, INC.)
By: /s/ Susumu Tadenuma
----------------------------- --------------------------------
Susumu Tadenuma
Its President
Duly Authorized
Date Signed: 7-24-03
----------------
OHIO COATINGS COMPANY
/s/ Xxxxxx X. XxXxxxxx By: /s/ X. X. XxXxx
----------------------------- --------------------------------
Its Pres/CEO
Duly Authorized
Date Signed: 7/25/03
----------------
STATE OF Ohio ,
COUNTY OF Belmont :
I, the undersigned officer, Notary Public of said County and State, do
certify that X. X. Xxx, who signed the foregoing agreement for XXXX XXXX
TINPLATE AMERICA CORP., has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at Yorkville, Ohio this 25th day of
July, 2003.
/s/ Xxxxxx X. XxXxxxxx
------------------------------------------------
Notary Public -- My Commission Expires: 02/05/08
- 0 -
XXXXX XX XXX XXXX,
XXXXXX XX XXX XXXX:
I, the undersigned officer, Notary Public of said County and State,
do certify that Xxxx Xxxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH CORPORATION, has this day acknowledged that he executed said
agreement as the duly authorized free act and deed of said corporation.
Given under my hand and official seal at New York, New York this ____ day
of _____________, 2003.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Notary Public -- My Commission Expires:________
STATE OF NEW YORK,
COUNTY OF NEW YORK:
I, the undersigned officer, Notary Public of said County and State,
do certify that Xxxx Xxxxxx, who signed the foregoing agreement for
WHEELING-PITTSBURGH STEEL CORPORATION, has this day acknowledged that he
executed said agreement as the duly authorized free act and deed of said
corporation.
Given under my hand and official seal at New York, New York this ____ day
of _____________, 2003.
------------------------------------------------
Notary Public -- My Commission Expires:________
- 7 -
STATE OF CALIFORNIA,
COUNTY OF :
I, the undersigned officer, Notary Public of said County and State, do
certify that Susumu Tadenuma, who signed the foregoing agreement for NIPPON
STEEL TRADING AMERICA, INC. (formerly known as NITTETSU SHOJI AMERICA, INC.),
has this day acknowledged that he executed said agreement as the duly authorized
free act and deed of said corporation.
Given under my hand and official seal at Los Angeles, California this 24th
day of July, 2003.
/s/ Xxxx X. Xxxxxxx
------------------------------------------------
Notary Public -- My Commission Expires: 6/22/07
STATE OF Ohio ,
COUNTY OF Belmont :
I, the undersigned officer, Notary Public of said County and State, do
certify that X.X. XxXxx, who signed the foregoing agreement for OHIO COATINGS
COMPANY, has this day acknowledged that he executed said agreement as the duly
authorized free act and deed of said corporation.
Given under my hand and official seal at Yorkville, Ohio this 25th day of
July, 2003.
/s/ Xxxxxx X. XxXxxxxx
------------------------------------------------
Notary Public -- My Commission Expires: 02/05/08
- 8 -
