EXHIBIT 4(B)
REGISTRATION RIGHTS AGREEMENT, dated as of September 30, 1995, by and
between WHX Corporation, a Delaware corporation (the "Company"), and Klockner
Namasco Corporation ("KNC").
The parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Common Stock of the Company, par value
$.01 per share.
"Demand Registration" shall have the meaning assigned to such term in
Section 3 hereof.
"Person" shall mean an individual, partnership, corporation, limited
liability company business trust, joint state company trust, unincorporated
organization, joint venture, a government authority or other entity of whatever
nature.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments to the Registration
Statement of which such Prospectus is a part, and all material incorporated by
reference in such Prospectus.
"Registrable Securities" shall mean the Securities, but only so long as
they remain Restricted Securities.
"Registration Statement" means any registration statement of the
Company which covers the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Restricted Securities" means the Securities upon original issuance
thereof, and at all times subsequent thereto until, in the case of any such
Security (a) it has been effectively registered under the Securities Act and
disposed of in accordance with the
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Registration Statement covering it or (b) it is distributed to the public
pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act.
"Securities" shall mean those shares of Common Stock issued to KNC
pursuant to that certain Asset Purchase Agreement by and between KNC and
Wheeling-Pittsburgh Steel Corporation; provided, however, that the Securities
referred to herein shall be adjusted to reflect equitably, in the discretion of
the Board of Directors of the Company, any consolidation, reorganization,
recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares or exchange of shares effected after the issuance of such
Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Underwritten Offering" shall mean a registration in which securities
of the Company are sold to an underwriter for reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT. The Securities entitled to the
benefits of this Agreement are the Registrable Securities.
3. DEMAND REGISTRATION.
(a) Requests for Registration. At any time following the issuance of
the Registrable Securities but in no event later than September 30, 1997, KNC
may make a written request to the Company for registration under and in
accordance with the provisions of the Securities Act of all but not less than
all of the Registrable Securities (a "Demand Registration").
(b) Number of Registrations. KNC is entitled to one (1) Demand
Registration except that a registration shall not constitute a Demand
Registration for the purposes of this Section 3(b) if (i) it does not become
effective under the Securities Act within three (3) months of the date requested
or (ii) an effective Registration Statement under the Securities Act is not
maintained for a period of at least nine (9) months, including as a result of
material developments which the Company determines require the filing of a
post-effective amendment to the Registration Statement (a "Material
Development"), provided that such Demand Registration is not withdrawn after
filing at the request of KNC for a reason other than the discovery of (x)
material information regarding the Company, of which KNC was unaware at the time
of filing or (y) any material change in the prospects or condition of the
Company, financial or otherwise, since the filing of such Demand Registration.
KNC hereby agrees that if the Company determines that a Material Development has
occurred which requires a post-effective amendment to the Registration
Statement, then KNC will refrain from selling any Registrable Securities until
the post-effective amendment is declared effective.
4. INFORMATION. Upon making a request pursuant to Section 3 hereof, KNC
shall specify the intended method of disposition of the Registrable Securities.
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5. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Section 3 hereof to effect a registration under the Securities
Act, the Company will, at its expense, as expeditiously as practicable and in no
event later than thirty (30) days after the date upon which KNC requests
registration of the Registrable Securities:
(a) In accordance with the Securities Act and the rules and regulations
of the Commission, prepare and file with the Commission a Registration Statement
in the form of registration statement appropriate with respect to the
Registrable Securities for resale and use its best efforts to cause such
Registration Statement to become and remain continuously effective until the
earlier of (i) the date all of the Registrable Securities covered by such
Registration Statement have been sold in accordance with the intended method of
KNC set forth in such Registration Statement, or (ii) nine (9) months following
the date upon which such Registration Statement is declared effective, and
prepare and file with the Commission such amendments to such Registration
Statement and supplements to the Prospectus contained therein as may be
necessary to keep such Registration Statement effective and such Registration
Statement and Prospectus accurate and complete during such period;
(b) If the offering is to be underwritten, in whole or in part, enter
into a written underwriting agreement in customary form with KNC and the
underwriter(s), in form and substance reasonably satisfactory to the managing
underwriter of the public offering and KNC;
(c) Furnish to KNC and to the underwriters, if any, of the Common Stock
being registered, such reasonable number of copies of the Registration Statement
and Prospectus and such other documents as such underwriters and KNC may
reasonably request in order to facilitate the public offering of the Common
Stock;
(d) Use its best efforts to register or qualify the Common Stock
covered by such Registration Statement under such state securities or blue sky
laws of such jurisdictions as KNC and the underwriters may reasonably request,
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
connection with any such registration or qualification of such Common Stock;
(e) Promptly notify KNC, after it shall receive notice thereof, of the
date and time when such Registration Statement and each post-effective amendment
thereto has become effective or a supplement to any Prospectus forming a part of
such Registration Statement has been filed;
(f) Promptly notify KNC of any request by the Commission for the
amending or supplementing of such Registration Statement or Prospectus or for
additional information;
(g) Prepare and file with the Commission, promptly upon the request of
KNC, the Registration Statement and any amendments or supplements to such
Registration Statement or Prospectus which, in the reasonable opinion of counsel
for KNC or counsel for the managing underwriter in connection with an
underwritten public offering, is required
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under the Securities Act or the rules and regulations thereunder in connection
with the distribution of the Common Stock by KNC or to otherwise comply with the
requirements of the Securities Act and such rules and regulations;
(h) Prepare and promptly file with the Commission and promptly notify
KNC of the filing of such amendments or supplements to such Registration
Statement or Prospectus as may be necessary to correct any statements or
omissions if, at the time when a Prospectus relating to such Common Stock is
required to be delivered under the Securities Act, any event has occurred as the
result of which any such Prospectus or any other Prospectus as then in effect
may include an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(i) Advise KNC, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued;
(j) Cooperate with KNC and the managing underwriter, if any, to
facilitate the timely preparation and delivery of certificates representing
Common Stock to be sold and not bearing any restrictive legends; and enable such
Common Stock to be in such denominations and registered in such names as the
managing underwriter may request at least three (3) business days prior to any
sale of Common Stock to the underwriters;
(k) Enter into such customary agreements (including an underwriting
agreement) and take all such other reasonable actions in connection therewith in
order to expedite or facilitate the disposition of such Registrable Securities,
and in such connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration:
(i) make such representations and warranties to KNC and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings;
(ii) if an underwriting agreement is entered into, the same shall
set forth in full the indemnification provisions and procedures of
Section 9 hereof with respect to all parties to be indemnified pursuant
to said Section; and
(iii) the Company shall deliver such documents and certificates as
may be reasonably requested by KNC and the managing underwriter, if
any, to evidence compliance with the terms of this Section 5 and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
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The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder.
(l) Make available for inspection by a representative of KNC and any
underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney or accountant retained by KNC or such underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with the preparation of the Registration
Statement; provided, however, that any records, information or documents that
are designated by the Company in writing as confidential shall be kept
confidential by such persons unless disclosure of such records, information or
documents is required by law, court or administrative order;
(m) Otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to the Company's
security holders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act, no later than forty-five (45) days after the end of any
twelve (12) month period (or ninety (90) days, if such a period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Common Stock is
sold to underwriters in an underwritten offering or, if not sold to underwriters
in such an offering, (ii) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of a Registration Statement;
(n) Not file any amendment or supplement to the Registration Statement
or Prospectus to which KNC has objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements of the
Securities Act or the rules and regulations thereunder, after having been
furnished with a copy thereof at least three (3) business days prior to the
filing thereof unless the Company shall have obtained an opinion of counsel that
such amendment is required under the Securities Act or the rules or regulations
adopted thereunder in connection with the distribution of Common Stock by the
Company or KNC; provided, however, that the failure of KNC or its counsel to
review or object to any amendment or supplement to the Registration Statement or
Prospectus shall not affect the rights of KNC or any controlling person or
persons thereof or any underwriter or underwriters therefor under Section 9
hereof.
6. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with the provisions of Sections 3 and 5 of this
Agreement shall be borne by the Company including, without limitation, the
following:
(a) All registration and filing fees (including those with respect to
filings required to be made with the National Association of Securities
Dealers);
(b) Fees and expenses of compliance with all securities or blue sky
laws (including fees and disbursements of counsel for the Company or
underwriters in connection with blue sky qualifications of the Registrable
Securities and determination of its eligibility for investment under the laws of
such jurisdictions as the managing underwriter or KNC may
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reasonably designate; provided, however, that the Company shall not be required
to consent to general service of process in any such state);
(c) Printing, messenger, telephone and delivery expenses;
(d) Fees and disbursements of counsel for the Company and, as
hereinafter provided, the underwriters;
(e) Fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit and
"comfort" letters required by or incident to such performance);
(f) Fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the Common
Stock or legal expenses of any person other than the Company, all of which shall
be paid by KNC); and
(g) Fees and expenses of other persons retained by the Company.
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the Registrable
Securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company.
7. LISTING ON SECURITIES EXCHANGE. If, and so long as, any class or
classes of the Company's Common Stock shall be listed on any national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), including the New York Stock Exchange, Inc., the Company will,
at its expense, use its best efforts to obtain and maintain the approval for
listing upon official notice of issuance of all shares of Common Stock
registered pursuant to Section 3 hereof.
8. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company will not
effect any public or private sale or distribution of its Common Stock, if any,
or any other equity or debt securities, including a sale pursuant to Regulation
D under the Securities Act, during the ten (10) day period prior to, and during
the forty-five (45) day period beginning on, the closing date of the
Underwritten Offering by the Company (if any) made pursuant to a Registration
Statement filed pursuant to Section 3 hereof.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. Whenever, pursuant to Section 3
hereof, a Registration Statement relating to the Registrable Securities is filed
under the Securities Act,
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the Company shall indemnify and hold harmless KNC, its officers, directors and
employees (the "Indemnities") and each person, if any, who controls any such
Indemnitee, against any losses, claims, damages or liabilities, joint or
several, to which such Indemnities or any such controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, or Prospectus contained therein, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Indemnities and each such controlling person for all legal or
other expenses reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action.
(b) Indemnification by KNC. KNC shall indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed such
Registration Statement and each other person, if any, who controls the Company,
within the meaning of the Securities Act, each underwriter and each other
Indemnitee against all losses, claims, damages or liabilities, joint or several,
to which the other Indemnities, the Company, or any such director, officer or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement, or
Prospectus contained therein, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only if, and to the extent that, such statement or
omission was in reliance upon and in conformity with written information
furnished to the Company by KNC specifically for use in the preparation thereof.
(c) Indemnification Procedures. Promptly after receipt by an Indemnitee
under subsection (a) or (b) of this Section 9 of notice of the commencement of
any action, such Indemnitee will, if a claim in respect thereof is to be made
against the indemnifying party under such clause, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any Indemnitee otherwise than under such clauses. In case
any such action shall be brought against any Indemnitee, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such Indemnitee, and after notice from the
indemnifying party to such Indemnitee of its election to assume the defense
thereof, the indemnifying party shall not be liable to such Indemnitee under
such clause for any legal or other expenses subsequently incurred by such
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Indemnitee shall have the right to
employ one counsel to represent such Indemnitee if, in the reasonable judgment
of such Indemnitee, it is advisable for such party to be represented by separate
counsel because separate defenses are available, or because a conflict of
interest exists between such indemnified and indemnifying party in respect of
such claim, and in that event the fees and expenses of such separate counsel
shall be paid by the indemnifying party.
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Notwithstanding the foregoing, if the Company is the indemnified party under
this Section 9, the Company shall designate the one counsel, and in all other
circumstances, the one counsel shall be designated by KNC. For purposes of this
Section 9 the terms "control," "controlling person" and "underwriter" have the
meanings which they have under the Securities Act.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an Indemnitee, then the
indemnifying party shall contribute to the amount paid or payable by the
Indemnitee as a result of such losses, claims, damages, liabilities or expenses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and the Indemnitee on the
other from the registration or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, or provides a lesser sum to the
Indemnitee than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the Indemnitee on the other but also the
relative fault of the indemnifying party and the Indemnitee as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
10. RULE 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations promulgated by the Commission thereunder (or, if the
Company is not required to file such reports, it will upon the request of KNC,
make publicly available other information so long as necessary to permit such
sales under Rule 144 under the Securities Act), and it will take such further
action as KNC may reasonably request, all to the extent required from time to
time to enable KNC to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule 144 may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of KNC, the Company will deliver to KNC a written statement as to
whether it has complied with such information and requirements.
11. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented in any respect only by written agreement by the Company and KNC.
12. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware, without giving effect to the
choice of law principles thereof.
13. INVALIDITY OF PROVISION. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
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14. NOTICES. All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed duly given if
delivered personally or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses or (at such other address
for the party as shall be specified by like notice):
(a) If to the Company:
WHX Corporation
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx,
Assistant Treasurer
with a copy to:
Xxxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) If to KNC:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx
with a copy to:
Xxxxxx Xxxxxxxx, Esq.
Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
15. HEADINGS; Execution in Counterparts. The headings and captions
contained herein are for convenience of reference only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.
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16. ENTIRE AGREEMENT. This Agreement, including the documents and
instruments referred to herein, embodies the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
17. ATTORNEYS' FEES. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover such reasonable attorneys fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled, as may be ordered in connection with such
proceeding.
IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto as of this 30th day of September, 1995.
WHX CORPORATION
By:
----------------------------
Name:
Title:
KLOCKNER NAMASCO CORPORATION
By:
----------------------------
Name:
Title:
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XXXXXX XXXXXXXX XXXXX & XXXXXXXXXX LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
(000) 000-0000 fax
October 31, 1995
Securities and Exchange Commission
000 Xxxxx Xxxxxx, X.X.
Xxxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Re: WHX CORPORATION
REGISTRATION STATEMENT ON FORM S-3
Gentlemen:
On behalf of WHX Corporation ("WHX" or the "Registrant"), transmitted
herewith pursuant to the Securities and Exchange Commission's (the "Commission")
XXXXX System, in accordance with the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, is WHX's Registration Statement on
Form S-3 and the Exhibits thereto (the "Registration Statement"). The
Registration Statement relates to 188,519 shares of common stock of WHX.
On October 30, 1995 WHX wire transferred immediately available funds to
the Commission's account number 0000000 at Mellon Bank in Pittsburgh,
Pennsylvania in payment of the applicable filing fee. The federal funds wire
reference number is 5052.
Please direct any inquiry or comment with respect to the enclosures to
the attention of the undersigned or Xxxxxx Xxxxxxx of this office at (212)
753-7200.
Very truly yours,
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Enclosures
