EXHIBIT 1.1
WHEELING-PITTSBURGH CORPORATION
3,650,000 Shares
Common Stock
($0.01 Par Value)
FORM OF
UNDERWRITING AGREEMENT
September[ ], 2004
UNDERWRITING AGREEMENT
, 2004
UBS Securities LLC
KeyBanc Capital Markets, a division of
McDonald Investments Inc.
as Managing Underwriters
c/o UBS Securities LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Wheeling-Pittsburgh Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell, and the persons or entities named in
Schedule B annexed hereto (the "Selling Stockholders") propose to sell, to the
underwriters named in Schedule A annexed and related hereto (the
"Underwriters"), for whom you are acting as representatives, an aggregate of
3,650,000 shares (the "Firm Shares") of Common Stock, $.01 par value (the
"Common Stock"), of the Company, of which 3,172,398 shares are to be issued and
sold by the Company and an aggregate of 477,602 shares are to be sold by the
Selling Stockholders in the respective amounts set forth under the caption "Firm
Shares" in Schedule B annexed hereto. In addition, solely for the purpose of
covering over-allotments, the Company proposes to grant to the Underwriters the
option to purchase from the Company up to an additional 547,500 shares of Common
Stock (the "Additional Shares"). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the "Shares." The Shares are
described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-116990)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each such preliminary prospectus, being herein called
a "Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement, as amended when it became or
becomes effective, including all documents filed as a part thereof and including
any information contained in a prospectus subsequently filed with the Commission
pursuant to Rule 424(b) under the Act and deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430(A) under the Act
and also including any registration statement filed pursuant to Rule 462(b)
under the Act, is herein called the "Registration Statement," and the
prospectus, in the form filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act) or, if no such
filing is required, the form of final prospectus included in the Registration
Statement at the time it
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became effective, is herein called the "Prospectus." As used herein, "business
day" shall mean a day on which the New York Stock Exchange is open for trading.
The Company, the Selling Stockholders and the Underwriters
agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell, and each of the Selling Stockholders, severally and
not jointly, agrees to sell, to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company and
each Selling Stockholder the respective number of Firm Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Firm Shares to be sold by the Company or by
such Selling Stockholders, as the case may be, as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule A attached hereto,
subject to adjustment in accordance with Section 10 hereof, in each case at a
purchase price of $[ ] per Share. The Company has agreed to reimburse the
Wheeling-Pittsburgh Steel Corporation Retiree Benefits Plan (the "Retiree
Plan"), one of the Selling Stockholders, for any underwriting discounts and
commissions on Shares sold by the Retiree Plan in the offering. The Company and
each Selling Stockholder is advised by you that the Underwriters intend (i) to
make a public offering of their respective portions of the Firm Shares as soon
after the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by UBS
Securities LLC ("UBS") on behalf of the several Underwriters at any time and
from time to time on or before the thirtieth day following the date of the
Prospectus, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (such date
and time being herein referred to as the "additional time of purchase");
provided, however, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares), subject to adjustment in accordance
with Section 10 hereof.
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Pursuant to powers of attorney, which shall be reasonably
satisfactory to counsel for the Underwriters, granted by each Selling
Stockholder, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will act as representatives of
the Retiree Plan, each in their official capacity to act for and on behalf of
U.S. Trust Company, N.A. in its role as independent fiduciary of the Retiree
Plan and __________ and ____________ will act as representatives of the Selling
Stockholders other than the Retiree Plan. The foregoing representatives (the
"Representatives of the Selling Stockholders") are authorized, on behalf of each
respective Selling Stockholder that they represent, to execute any documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by such Selling Stockholders, to make delivery of the certificates of
such Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom the expenses to be borne by such
Selling Stockholders in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to such Selling Stockholders
in proportion to the number of Shares sold by such Selling Stockholders, to
receive notices on behalf of such Selling Stockholders and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and the Selling Stockholders by Federal
Funds wire transfer, against delivery of the certificates for the Firm Shares to
you through the facilities of The Depository Trust Company ("DTC") for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York City time, on [ ], 2004 (unless another time shall be
agreed to by you and the Company and the Representatives of the Selling
Stockholders or unless postponed in accordance with the provisions of Section 10
hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called "the time of purchase." Electronic transfer of the
Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 8 hereof with
respect to the purchase of the Shares shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., New
York City time, on the date of the closing of the purchase of the Firm Shares or
the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or suspending
the use of any Preliminary Prospectus or the effectiveness of the
Registration Statement has been issued and no proceedings for such
purpose have been instituted or, to the Company's knowledge, are
contemplated by the Commission; each Preliminary Prospectus, at the
time of filing thereof, complied in all material respects to the
requirements of the Act and the last Preliminary Prospectus distributed
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in connection with the offering of the Shares did not, as of its date,
and does not contain at the time of purchase and any additional time of
purchase an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; the Registration Statement complied when it
became effective, complies and will comply, at the time of purchase and
any additional time of purchase, in all material respects with the
requirements of the Act and the Prospectus will comply, as of its date
and at the time of purchase and any additional times of purchase, in
all material respects with the requirements of the Act and any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement have been and will
be so described or filed; the conditions to the use of Form S-1 have
been satisfied; the Registration Statement did not when it became
effective, does not and will not, at the time of purchase and any
additional time of purchase, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus will not, as of its date and at the time of purchase and any
additional time of purchase, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no warranty or representation with respect to any
statement contained in the last Preliminary Prospectus, the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in
writing by or on behalf of such Underwriter through you or on your
behalf to the Company expressly for use in the last Preliminary
Prospectus, the Registration Statement or the Prospectus; and the
Company has not distributed and will not distribute any offering
material in connection with the offering or sale of the Shares other
than the Registration Statement, the then most recent Preliminary
Prospectus and the Prospectus;
(b) as of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth under the
heading "Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase
and the additional time of purchase, as the case may be, the Company
shall have an authorized and outstanding capitalization as set forth
under the heading "As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization" (subject, in
each case, to the issuance of shares of Common Stock upon exercise of
stock options and warrants disclosed as outstanding in the Registration
Statement and the Prospectus and grant of options under existing stock
option plans described in the Registration Statement and the
Prospectus); all of the issued and outstanding shares of capital stock,
including the Common Stock, of the Company have been duly authorized
and validly issued and are fully paid and non-assessable, have been
issued in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power
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and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and the Prospectus,
to execute and deliver this Agreement and to issue, sell and deliver
the Shares as contemplated herein;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
financial condition, results of operation or prospects of the Company
and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect");
(e) the Company has no direct or indirect subsidiaries other
than Wheeling-Pittsburgh Steel Corporation and Wheeling-Pittsburgh
Steel Venture Corporation (collectively, the "Subsidiaries"); the
Company owns directly or indirectly all of the issued and outstanding
capital stock of each of the Subsidiaries; the Company does not own,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any other corporation or have an equity
interest in any firm, partnership, joint venture, association or other
entity, except with respect to Wheeling-Nisshin, Inc., Ohio Coatings
Company, and Feralloy-Wheeling Specialty Processing Company
(collectively, the "Joint Ventures"); complete and correct copies of
the certificates of incorporation and the by-laws of the Company and
the Subsidiaries and all amendments thereto have been delivered to you,
and except as set forth in the exhibits to the Registration Statement
no changes therein will be made subsequent to the date hereof and prior
to the time of purchase or, if later, the additional time of purchase;
each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus; each Subsidiary is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse Effect;
all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued; all of the
outstanding shares of capital stock of each of the Subsidiaries and all
of the outstanding shares of capital stock owned, directly or
indirectly, by the Company, of each of Joint Venture are fully paid and
non-assessable and, except as described in the Registration Statement
and the Prospectus, are owned by the Company subject to no security
interest, other encumbrance or adverse claims; and no options, warrants
or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiaries are outstanding;
(f) Each Joint Venture has been duly formed and is existing
and in good standing under the laws of its state of organization, with
power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged. Each Joint Venture is duly
qualified or registered as a foreign limited partnership, limited
liability company or
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corporation to transact business in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or be registered would not have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
(g) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights of
first refusal and similar rights;
(h) the capital stock of the Company, including the Shares,
shall conform in all material respects as of the time of purchase and
as of the additional time of purchase, if applicable, to the
description set forth in the section of the Registration Statement and
the Prospectus entitled "Description of Capital Stock" and the
certificates for the Shares are in due and proper form and the holders
of the Shares will not be subject to personal liability by reason of
being such holders;
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(j) neither the Company nor any of the Subsidiaries is in
breach or violation of or in default under (nor has any event occurred
which with notice, lapse of time or both would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its respective charter or by-laws, (B) or
any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, except for any breach, violation
or default under this clause (B) which would not, individually or in
the aggregate, have a Material Adverse Effect, and the execution,
delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with notice,
lapse of time or both would result in any breach or violation of or
constitute a default under) the charter or by-laws of the Company or
any of the Subsidiaries, or any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or affected, or any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of the Subsidiaries;
(k) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares or the consummation
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by the Company of the transactions contemplated hereby other than
registration of the Shares under the Act, which has been or will be
effected, and any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters or under the rules and regulations of the
NASD;
(l) except as set forth in the Registration Statement and the
Prospectus or otherwise waived in writing or terminated prior to the
date hereof, (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, and (iii) no person has the right to act as
an underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Shares, in the case of each of the
foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of
the Shares as contemplated thereby or otherwise; except as set forth in
the Registration Statement and the Prospectus or otherwise waived in
writing or terminated prior to the date hereof, no person has the
right, contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital stock
or other equity interests of the Company, or to include any such shares
or interests in the Registration Statement or the offering contemplated
thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise;
(m) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business, except where the failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries is in violation of, or
in default under, or has received notice of any proceedings relating to
revocation or modification of, any such license, authorization, consent
or approval or any federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to the Company or any
of the Subsidiaries, except where such violation, default, revocation
or modification would not, individually or in the aggregate, have a
Material Adverse Effect;
(n) all legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions, contracts, licenses,
agreements, leases or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or filed
as required;
(o) except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Company's knowledge,
contemplated to which the Company or any of the Subsidiaries or any of
their respective directors or officers in their capacities as such is
or would be a party or of which any of their respective properties is
or would be subject at law or in equity, before or by
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any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, except any such action,
suit, claim, investigation or proceeding which would not result in a
judgment, decree or order having, individually or in the aggregate, a
Material Adverse Effect or preventing consummation of the transactions
contemplated hereby;
(p) PricewaterhouseCoopers LLP, whose report on the
consolidated financial statements of the Company and the Subsidiaries
is filed with the Commission as part of the Registration Statement and
the Prospectus, are independent public accountants as required by the
Act;
(q) the audited financial statements included in the
Registration Statement and the Prospectus, together with the related
notes and schedules, present fairly the consolidated financial position
of the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and
the Subsidiaries for the periods specified and have been prepared in
compliance with the requirements of the Act and in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved; the other financial and statistical data
set forth in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be
included in the Registration Statement and the Prospectus that are not
included as required; and the Company and the Subsidiaries do not have
any material liabilities or obligations, direct or contingent
(including any-off balance sheet obligations), not disclosed in the
Registration Statement and the Prospectus;
(r) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company and the Subsidiaries taken as a whole, (iii)
any obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or the Subsidiaries, which is
material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the capital stock or outstanding indebtedness of the Company
or the Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company;
(s) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), substantially in
the form set forth as Exhibit A hereto, of the Selling Stockholders and
each of the Company's directors and executive officers, listed under
the heading "Management" in the Prospectus;
(t) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Registration Statement and the Prospectus,
will not be required to register as an "investment company" as such
term
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is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(u) the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement and in the Prospectus as being owned by each of
them, free and clear of all liens, claims, security interests or other
encumbrances, except as described in the Registration Statement and in
the Prospectus; all the property described in the Registration
Statement and the Prospectus as being held under lease by the Company
or a Subsidiary is held thereby under valid, subsisting and enforceable
leases;
(v) the Company and the Subsidiaries own, or have obtained
valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, copyrights, trade secrets and other
proprietary information described in the Registration Statement and the
Prospectus as being owned or licensed by them or which are necessary
for the conduct of their respective businesses (collectively,
"Intellectual Property"), except where the failure to own, license or
have such rights would not, individually or in the aggregate, have a
Material Adverse Effect; (i) except as is not material, there are no
third parties who have or, to the Company's knowledge, will be able to
establish rights to any Intellectual Property, except for the ownership
rights of the owners of the Intellectual Property which is licensed to
the Company; (ii) except as is not material, there is no infringement
by third parties of any Intellectual Property; (iii) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the Company's rights in or to
any Intellectual Property, except for actions, suits, proceedings or
claims that would not, individually or in the aggregate, not have a
Material Adverse Effect, and the Company is unaware of any facts which
could form a reasonable basis for any such claim; (iv) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
Intellectual Property, except for actions, suits, proceedings or claims
that would not, individually or in the aggregate, not have a Material
Adverse Effect, and the Company is unaware of any facts which could
form a reasonable basis for any such claim; (v) there is no pending or,
to the Company's knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights
of others, and the Company is unaware of any facts which could form a
reasonable basis for any such claim; (vi) except as is not material,
there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the Intellectual
Property; and (vii) there is no prior art that may render any patent
application owned by the Company of the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(w) neither the Company nor any of the Subsidiaries is engaged
in any unfair labor practice; except for matters which would not,
individually or in the aggregate, have a Material Adverse Effect, (i)
there is (A) no unfair labor practice complaint pending or, to the
Company's knowledge, threatened against the Company or any of the
Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or, to the Company's knowledge,
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threatened, (B) no strike, labor dispute, slowdown or stoppage pending
or, to the Company's knowledge, threatened against the Company or any
of the Subsidiaries and (C) no union representation dispute currently
existing concerning the employees of the Company or any of the
Subsidiaries, and (ii) to the Company's knowledge, (A) no union
organizing activities are currently taking place concerning the
employees of the Company or any of the Subsidiaries and (B) there has
been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries;
(x) except as set forth in the Registration Statement and the
Prospectus, the Company and the Subsidiaries and their properties,
assets and operations are in compliance with, and the Company and the
Subsidiaries hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that
failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material
Adverse Effect; there are no past, present or, to the Company's
knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans that
could reasonably be expected to give rise to any material costs or
liabilities to the Company or the Subsidiaries under, or prevent
compliance by the Company or the Subsidiaries with, Environmental Laws;
except as would not, individually or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of the Subsidiaries (i) is
the subject of any investigation, (ii) has received any notice or
claim, (iii) is a party to or, to the Company's knowledge, affected by
any pending or threatened action, suit or proceeding, (iv) is bound by
any judgment, decree or order or (v) has entered into any agreement, in
each case relating to any alleged violation of any Environmental Law or
any actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below) (as used herein,
"Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(y) in the ordinary course of its business, the Company and
each of the Subsidiaries conducts a periodic review of the effect of
the Environmental Laws on its business, operations and properties, in
the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance
with the Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties);
-11-
(z) all tax returns required to be filed by the Company and
each of the Subsidiaries have been filed, and all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided;
(aa) the Company and each of the Subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
as the Company deems adequate; such insurance insures against such
losses and risks to an extent which is adequate in accordance with
customary industry practice to protect the Company and the Subsidiaries
and their businesses; all such insurance is fully in force on the date
hereof and will be fully in force at the time of purchase and any
additional time of purchase;
(bb) neither the Company nor any of the Subsidiaries has
sustained since the date of the last audited financial statements
included in the Registration Statement and the Prospectus any material
loss or interference with its respective business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree;
(cc) except as disclosed in the Registration Statement and the
Prospectus, the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or, to the Company's knowledge after due
inquiry, any other party to any such contract or agreement;
(dd) the Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(ee) the Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; the Company's independent auditors and the Audit Committee
of the Board of Directors have been advised of: (i) any significant
deficiencies in the design or operation of internal controls which
could adversely affect the Company's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or
not material, that involves
-12-
management or other employees who have a role in the Company's internal
controls; any material weaknesses in internal controls have been
identified for the Company's independent auditors; and since the date
of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls
or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses;
(ff) there is no failure on the part of the Company or any of
the Company's directors or officers, in their capacities as such, to
comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended, and the rules and regulations promulgated in connection
therewith which are currently applicable to the Company that would have
a Material Adverse Effect;
(gg) the Company has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in
the form of a personal loan made, directly or indirectly, by the
Company to any director or executive officer of the Company, or to any
family member or affiliate of any director or executive officer of the
Company; and since July 30, 2002, the Company has not, directly or
indirectly, including through any subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any
director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any
personal loan to any director or executive officer of the Company, or
any family member or affiliate of any director or executive officer,
which loan was outstanding on July 30, 2002;
(hh) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from
such sources to the extent required;
(ii) neither the Company nor any of the Subsidiaries has made
any payment of funds of the Company or the Subsidiaries or received or
retained any funds in violation of any law, rule or regulation,
including, without limitation, the Foreign Corrupt Practices Act, as
amended; to the Company's knowledge, no employee or agent of the
Company or the Subsidiaries has made any payment of funds of the
Company or the Subsidiaries or received or retained any funds in
violation of any law, rule or regulation, including, without
limitation, the Foreign Corrupt Practices Act, as amended;
(jj) neither the Company nor any of the Subsidiaries nor any
of their respective directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or
which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares;
-13-
(kk) to the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus;
In addition, any certificate signed by any officer of the
Company or any of the Subsidiaries and delivered to the Underwriters or counsel
for the Underwriters in connection with the offering of the Shares shall be
deemed to be a representation and warranty by the Company or Subsidiary, as the
case may be, as to matters covered thereby, to each Underwriter.
4. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) such Selling Stockholder now is and at the time of
delivery of such Shares will be, the lawful owner of the number of
Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has and, at the time of delivery thereof, will have valid
and marketable title to such Shares, and upon delivery of and payment
for such Shares, the Underwriters will acquire valid and marketable
title to such Shares free and clear of any claim, lien, encumbrance,
security interest, community property right, restriction on transfer or
other defect in title;
(b) such Selling Stockholder has and at the time of delivery
of such Shares will have, full legal right, power and capacity, and any
approval required by law (other than those imposed by the Act and the
securities or blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver such Shares in the manner provided in this
Agreement;
(c) this Agreement, the Power of Attorney, and the Custody
Agreement among EquiServe Trust Company, as custodian, and the Selling
Stockholders (other than the Retiree Plan) (each, a "Custody
Agreement") have been duly executed and delivered by such Selling
Stockholder and each is a legal, valid and binding agreement of such
Selling Stockholder enforceable in accordance with its terms;
(d) the Registration Statement and Prospectus did not at the
time of effectiveness and do not and will not at the time of purchase
and any supplements or amendments thereto, in each case as relate to
such Selling Stockholder in his or its capacity as such, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that such Selling Stockholder makes no
warranty or representation with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in
writing by or on behalf of such Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus;
(e) such Selling Stockholder has duly and irrevocably
authorized the Representatives of such Selling Stockholder, on behalf
of such Selling Stockholder, to execute and deliver this Agreement and
any other document necessary or desirable in connection with
-14-
the transactions contemplated thereby and to deliver the Shares to be
sold by such Selling Stockholder and receive payment therefor pursuant
hereto; and
(f) the sale of such Selling Stockholder's Shares pursuant to
this Agreement is not prompted by any information concerning the
Company which is not set forth in the Prospectus.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states or other
jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the
Shares; provided that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the
laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective
amendment thereto to be declared effective before the Shares may be
sold, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible
and the Company will advise you promptly and, if requested by you, will
confirm such advice in writing, (i) when the Registration Statement and
any such post-effective amendment thereto has become effective, and
(ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for,
or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the
-15-
Registration Statement, to use its best efforts to obtain the lifting
or removal of such order as soon as possible; to advise you promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and to provide you and Underwriters' counsel copies of any
such documents for review and comment a reasonable amount of time prior
to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(e) subject to Section 5(d) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; and to provide you with a copy of such
reports and statements and other documents to be filed by the Company
pursuant to Section 13, 14 or 15(d) of the Exchange Act during such
period a reasonable amount of time prior to any proposed filing, and to
promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of
any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act which could require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 5(d) hereof, to
prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change;
(h) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but not later than _____, 2005;
(i) to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and the Subsidiaries for such
fiscal year, accompanied by a copy of the certificate or report thereon
of nationally recognized independent certified public accountants);
(j) to furnish to you five conformed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto) and sufficient
conformed copies of the foregoing (other than exhibits) for
distribution of a conformed copy to each of the other Underwriters;
-16-
(k) to furnish to you promptly and, upon request, to each of
the other Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders or
shall from time to time publish or publicly disseminate, (ii) copies of
all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission, (iii) copies of documents or reports
filed with any national securities exchange on which any class of
securities of the Company is listed, and (iv) such other information as
you may reasonably request regarding the Company or the Subsidiaries;
(l) to furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been
read by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 8(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the
Shares including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Shares to the
Underwriters, (iii) the producing, word processing and/or printing of
this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and (except
closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale
under state or foreign laws and the determination of their eligibility
for investment under state or foreign law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on NASDAQ and any
registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Shares by the NASD, including the legal
fees and filing fees and other disbursements of counsel to the
Underwriters, (vii) the fees and disbursements of any transfer agent or
registrar for the Shares, (viii) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Shares to prospective
investors and the Underwriters' sales forces, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other
expenses incurred by the officers of the Company and any such
-17-
consultants, and the cost of any aircraft chartered in connection with
the road show, and (ix) the performance of the Company's other
obligations hereunder;
(o) not to (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or (ii) file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or warrants or other rights to purchase
Common Stock or any other securities of the Company that are
substantially similar to Common Stock (other than the filing of any
post-effective amendment to the Company's existing Registration
Statement on Form S-1 (Registration No. 333-111558) relating to certain
shares held by an existing stockholder of the Company), or (iii) enter
into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of Common
Stock or securities convertible into or exercisable or exchangeable for
Common Stock or any other securities of the Company that are
substantially similar to Common Stock, whether such transaction is to
be settled by delivery of Common Stock or such other securities or
otherwise or (iv) publicly announce in which to effect any transaction
specified in clause (i), (ii) or (iii) of this Section 6(o), for a
period of 90 days after the date hereof (the "LOCK-UP PERIOD"), without
the prior written consent of UBS, except for (i) the registration of
the Shares and the sales to the Underwriters pursuant to this
Agreement, (ii) issuances of Common Stock (A) upon the exercise of
options or warrants disclosed as outstanding in the Registration
Statement and the Prospectus or (B) with respect to any obligation of
the Company to make contributions to the Wheeling-Pittsburgh Steel
Corporation Retiree Benefits Plan and Related Trust and/or profit
sharing plans benefiting the United Steel Workers Association
represented employees or salaried employees of the Company, as the case
may be, as described in the Registration Statement or Prospectus, (iii)
the grants of employee stock options not exercisable during the Lock-Up
Period pursuant to equity compensation plans described in the
Registration Statement and the Prospectus; provided, however, if (i)
during the period that begins on the date that is 15 calendar days plus
3 business days before the last day of the Lock-Up Period and ends on
the last day of the Lock-Up Period, the Company issues an earnings
release or material news or a material event relating to the Company
occurs; or (ii) prior to the expiration of the Lock-Up Period, the
Company announces that it will release earnings results during the
16-day period beginning on the last day of the Lock-Up Period, the
restrictions imposed by this letter shall continue to apply until the
expiration of the date that is 15 calendar days plus 3 business days
after the date on which the issuance of the earnings release or the
material news or material event occurs; provided, further, that this
paragraph will not apply if the Company's shares of Common Stock are
"actively traded securities," as defined in Regulation M, 17 CFR
242.101 (c)(1); and
(p) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock.
-18-
6. Certain Covenants of the Company and the Selling Stockholders. The
Company and each of the Selling Stockholders agree with each Underwriter as
follows:
(a) the Company and the Selling Stockholders, in such
proportions (aggregating 100%) as the number of Shares to be sold by
the Company and by each such Selling Stockholder bears to the total
number of Shares or as they otherwise may determine among themselves,
will pay all expenses, fees and taxes (other than any transfer taxes
and fees and disbursements of counsel for the Underwriters except as
set forth under Section 7 hereof or (iii) or (iv) below) in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the issuance, sale and delivery of the Shares by
the Company and the Selling Stockholders, (iii) the word processing
and/or printing of this Agreement, any Agreement Among Underwriters,
any dealer agreements, any Statements of Information, any Custody
Agreement and the Powers of Attorney and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and
the determination of their eligibility for investment under state law
as aforesaid (including the legal fees and filing fees and other
disbursements of counsel to the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Shares on any securities exchange or qualification of the Shares for
quotation on NASDAQ and any registration thereof under the Exchange
Act, (vi) the filing for review of the public offering of the Shares by
the National Association of Securities Dealers, Inc. (the NASD), and
(vii) the performance of the Company's and the Selling Stockholders'
other obligations hereunder; and
(b) except as provided herein or in the Lock-up Agreement to
which it is a party, the Company and the Selling Stockholders will not
issue, sell, grant any option to sell or otherwise dispose of, directly
or indirectly, any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock or, in the case of the Company, permit the
registration under the Act of any shares of Common Stock, except for
the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement and except for issuances of Common Stock
upon the exercise of outstanding options, warrants and debentures, for
a period of 90 days after the date of the Prospectus, without the prior
written consent of the Managing Underwriter[s].
7. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 10 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 5(n) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company
-19-
and the Selling Stockholders on the date hereof, at the time of purchase and, if
applicable, at the additional time of purchase, the performance by the Company
and each of the Selling Stockholders of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form and substance satisfactory to ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Underwriters, stating that:
(i) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware, with the corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus,
to execute and deliver this Agreement and to issue, sell and
deliver the Shares as contemplated herein;
(ii) each of the Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, with the corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration
Statement and the Prospectus;
(iii) each of the Joint Ventures is a corporation or
a partnership, as applicable, duly incorporated or organized,
as applicable, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization,
with the corporate or partnership power and authority to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus;
(iv) the Company and the Subsidiaries are duly
qualified to do business as a foreign corporation and are in
good standing in each jurisdiction where the ownership or
leasing of their properties or the conduct of their business
requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the Shares to be issued and sold by the Company
have been duly authorized and when delivered to and paid for
by the Underwriters in accordance with the terms of this
Agreement, will be validly issued, fully paid and
non-assessable;
(vii) the Company has an authorized and, to such
counsel's knowledge, outstanding capitalization as set forth
in the Registration Statement and the Prospectus; all of the
issued and outstanding shares of capital stock of the Company
-20-
have been duly authorized and validly issued, are fully paid
and non-assessable and are free of statutory preemptive rights
and, to such counsel's knowledge, contractual preemptive
rights, resale rights, rights of first refusal and similar
rights (other than those described in the Registration
Statement and the Prospectus); the Shares are free of
statutory preemptive rights and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first
refusal and similar rights (as described in the Registration
Statement and the Prospectus); the certificates for the Shares
are in due and proper form and the holders of the Shares will
not be subject to personal liability solely by reason of being
such holders;
(viii) all of the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and, except
as otherwise stated in the Registration Statement and the
Prospectus, are owned by the Company, in each case subject to
no security interest, other encumbrance or adverse claim; and
to such counsel's knowledge, no options, warrants or other
rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into shares of
capital stock or ownership interests in the Subsidiaries are
outstanding;
(ix) the capital stock of the Company, including the
Shares, conforms in all material respects to the description
thereof contained in the Registration Statement and the
Prospectus;
(x) (A) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial or statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act; and (B)
the conditions to the use of Form S-1 have been satisfied;
(xi) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened
under the Act and any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424 under the Act has
been made in accordance with the time period required by such
Rule 424;
(xii) except as disclosed in the Registration
Statement and the Prospectus, no approval, authorization,
consent or order of or filing with any federal, state or local
governmental or regulatory commission, board, body, authority
or agency is required in connection with the issuance and sale
of the Shares and consummation by the Company of the
transactions contemplated hereby other than registration of
the Shares under the Act (except such counsel need express no
opinion as to any necessary qualification under the state
securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters);
-21-
(xiii) the execution, delivery and performance of
this Agreement by the Company, the issuance and sale of the
Shares by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not
result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of
time or both would result in any breach or violation of or
constitute a default under) (A) the charter or by-laws of the
Company or any of the Subsidiaries, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or the express terms of any
license, lease, contract or other agreement or instrument
filed as an exhibit to the Registration Statement or to the
Company's most recent annual report on Form 10-K, (C) the
General Corporation Law of the State of Delaware, the laws of
the State of New York, the laws of the Commonwealth of
Pennsylvania, or any applicable statute, regulation or rule of
the United States, or (D) to such counsel's knowledge, any
decree, judgment or order applicable by its terms to the
Company or any of the Subsidiaries;
(xiv) to such counsel's knowledge, there are no
affiliate transactions, off-balance sheet transactions,
contracts, licenses, agreements, leases or documents of a
character which are required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which have not been so
described or filed;
(xv) to such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending
or threatened to which the Company or any of the Subsidiaries
or any of their respective directors or officers is or would
be a party (in such person's capacity as a director or
officer) or to which any of their respective properties is or
would be subject at law or in equity, before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are
required to be described in the Registration Statement or the
Prospectus but are not so described;
(xvi) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Registration Statement
and the Prospectus, will not be required to register as an
"investment company" as such term is defined in the Investment
Company Act;
(xvii) the information in the Registration Statement
and the Prospectus under the headings "Description of capital
stock," and "US tax considerations to non-US holders," insofar
as such statements constitute a summary of documents or
matters of law, and those statements in the Registration
Statement and the Prospectus that are descriptions of
contracts, agreements or other legal documents or of legal
proceedings, or refer to statements of law or legal
conclusions, are accurate in all material respects and present
fairly the information required to be shown; and
(xviii) Except as disclosed in the Registration
Statement and the Prospectus, no person has the right,
pursuant to the terms of any contract, agreement or other
-22-
instrument described in or filed as an exhibit to the
Registration Statement or otherwise known to such counsel, to
cause the Company to register under the Act any shares of
Common Stock or shares of any other capital stock or other
equity interest of the Company, or to include any such shares
or interest in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise.
In addition, such counsel shall state that such
counsel has participated in conferences with representatives of the
Company, including certain of its executive, financial and accounting
officers, representatives of the independent public accountants of the
Company and representatives of the Underwriters, including counsel to
the Underwriters, at which the contents of the Registration Statement
and the Prospectus were discussed, has reviewed certificates of certain
officers of the Company and a letter addressed to the Underwriters from
the Company's independent public accountants, and, although such
counsel is not opining as to factual matters and is not passing upon
and does not assume responsibility for the accuracy, completeness or
fairness of the information contained in the Registration Statement or
the Prospectus and has not made independent investigation of that
information (except as and to the extent stated in subparagraph (xvii)
above), on the basis of the foregoing nothing has come to the attention
of such counsel that causes them to believe that the Registration
Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at the time of purchase
or the additional time of purchase, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and related notes and
schedules and other financial or statistical data included in or
omitted from the Registration Statement or the Prospectus or any
supplement or amendment thereto).
(b) The Retiree Plan shall furnish to you at the time of
purchase an opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for U.S. Trust
Company, N.A. in its capacity as independent fiduciary of the Retiree
Plan, addressed to the Underwriters, and dated the time of purchase,
with reproduced copies for each of the other Underwriters, and in form
and substance satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, stating that:
(i) this Agreement and the Custody Agreement to which
it is a party have been duly executed and delivered by or on
behalf of the Retiree Plan;
(ii) U.S. Trust Company, N.A., in its capacity as
independent fiduciary of the Retiree Plan, has the legal power
and the authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by the
Retiree Plan in the manner provided in this Agreement;
-23-
(iii) assuming the several Underwriters purchase the
Shares delivered by the Retiree Plan for value and without
notice of any adverse claim (within the meaning Section 8-102
of the Uniform Commercial Code of the State of New York), the
delivery of certificates representing such Shares either
registered in the name of any Managing Underwriter or
effectively endorsed to such Underwriter or in blank will pass
all rights that the Retiree Plan has in such Shares to the
Underwriters, free of any such adverse claim;
(iv) each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has
been duly authorized by the Retiree Plan to execute and
deliver on behalf of the Retiree Plan this Agreement and any
other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to
be sold by the Retiree Plan; and
(v) to such counsel's knowledge, the statements in
the Prospectus under the caption "Selling stockholders"
insofar as such statements constitute a summary of the matters
required to be described therein present fairly in all
material respects the information called for with respect to
such matters.
(c) The Selling Stockholders (other than the Retiree Plan)
shall furnish to you at the time of purchase an opinion of ▇▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders (other than the
Retiree Plan), addressed to the Underwriters, and dated the time of
purchase, with reproduced copies for each of the other Underwriters,
and in form and substance satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, stating that:
(i) this Agreement and the Custody Agreement to which
each such Selling Stockholder is a party have been duly
executed and delivered by or on behalf of each of the Selling
Stockholders (other than the Retiree Plan);
(ii) each Selling Stockholder (other than the Retiree
Plan) has the individual power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder in the manner
provided in this Agreement;
(iii) assuming the several Underwriters purchase the
Shares delivered by each Selling Stockholder (other than the
Retiree Plan) for value and without notice of any adverse
claim (within the meaning Section 8-102 of the Uniform
Commercial Code of the State of New York), the delivery of
certificates representing such Shares either registered in the
name of any Managing Underwriter or effectively endorsed to
such Underwriter or in blank will pass all rights that
each such Selling Stockholder has in such Shares to the
Underwriters, free of any such adverse claim;
(iv) each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ has been duly authorized by each Selling Stockholder
(other than the Retiree Plan) to execute and deliver on behalf
of such Selling Stockholder this Agreement and any other
document
-24-
necessary or desirable in connection with the transactions
contemplated hereby and to deliver the Shares to be sold by
such Selling Stockholder; and
(v) to such counsel's knowledge, the statements in
the Prospectus under the caption "Principal Stockholders" and
"Selling Stockholders" insofar as such statements constitute a
summary of the matters referred to therein present fairly the
information called for with respect to such matters.
(d) You shall have received from PricewaterhouseCoopers LLP
letters dated, respectively, the date of this Agreement, the time of
purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by UBS.
(e) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be,
with respect to such matters as may be reasonably requested by the
Underwriters).
(f) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus shall have been filed to which
you object in writing.
(g) The Registration Statement shall become effective not
later than 5:30 P.M. New York City time, on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement and any registration statement
pursuant to Rule 462(b) under the Act required in connection with the
offering and sale of the Shares shall have been filed and become
effective no later than 10:00 p.m., New York City time, on the date of
this Agreement.
(h) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Prospectus
and all amendments or supplements thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not
misleading.
(i) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole shall occur or become known.
-25-
(j) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial
Officer in the form attached as Exhibit B hereto.
(k) You shall have received signed Lock-up Agreements referred
to in Section 3(s) hereof.
(l) The Company and the Selling Stockholders shall have
furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the time of purchase and, if
applicable, the additional time of purchase, as you may reasonably
request.
(m) The Shares shall have been approved for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(n) The Company shall furnish to you executed copies of any
waiver or consent required under any agreement which would otherwise
give any person (i) any preemptive rights, resale rights, rights of
first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company or (ii) the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, or
to include any such shares or interests in the Registration Statement
or the offering contemplated thereby, whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise.
(o) Each Selling Stockholder will at the time of purchase
deliver to you a certificate of the Representatives of such Selling
Stockholder to the effect that the representations and the warranties
of such Selling Stockholder as set forth in this Agreement are true and
correct as of such date.
9. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS or any group of
Underwriters (which may include UBS) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, if (x) since the time of execution of
this Agreement or the earlier respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been any material
adverse change or any development involving a prospective material adverse
change in the business, properties, management, financial condition or results
of operations of the Company and the Subsidiaries taken as a whole, which would,
in UBS' judgment or in the judgment of such group of Underwriters, make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the
-26-
manner contemplated in the Registration Statement and the Prospectus, or (y)
since of execution of this Agreement, there shall have occurred: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on the
NASDAQ; (iii) a general moratorium on commercial banking activities declared by
either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national
emergency or war; or (v) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in UBS' judgment
or in the judgment of such group of Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus, or (z) since the time of execution of this Agreement, there shall
have occurred any downgrading, or any notice or announcement shall have been
given or made of (i) any intended or potential downgrading or (ii) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or any
Subsidiary by any "nationally recognized statistical rating organization," as
that term is defined in Rule 436(g)(2) under the Act.
If UBS or any group of Underwriters elects to terminate this
Agreement as provided in this Section 9, the Company, the Representatives of the
Selling Stockholders and each other Underwriter shall be notified promptly in
writing.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company or the Selling Stockholders, as the case may be, shall be unable to
comply with any of the terms of this Agreement, the Company or the Selling
Stockholders, as the case may be, shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 5(n), 6(a) and
11 hereof), and the Underwriters shall be under no obligation or liability to
the Company and the Selling Stockholders under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. Subject to Sections 8 and 9
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 8 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 9
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A.
-27-
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company and each of the Selling Stockholders agrees
with the non-defaulting Underwriters that it will not sell any Firm Shares
hereunder unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 10 with like effect
as if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five business day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
11. Indemnity and Contribution.
(a) The Company and the Selling Stockholders jointly and
severally agree to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 11 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
either such Registration Statement or such Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information concerning such
-28-
Underwriter furnished in writing by or on behalf of such Underwriter to the
Company expressly for use in such Registration Statement or such Prospectus or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading, (ii) any untrue statement or alleged untrue statement made by
the Company in Section 3 hereof or the failure by the Company to perform when
and as required any agreement or covenant contained herein, or (iii) any untrue
statement or alleged untrue statement of any material fact contained in any
audio or visual materials provided by the Company or based upon written
information furnished by or on behalf of the Company including, without
limitation, slides, videos, films or tape recordings used in connection with the
marketing of the Shares; provided, further, that no Selling Stockholder shall be
responsible, either pursuant to the indemnity or as a result of any breach of
this Agreement, for losses, expenses, liabilities or claims arising out of or
based upon such untrue statement or omission or allegation hereof based upon
information furnished by any party other than such Selling Stockholder and, in
any event, no Selling Stockholder shall be responsible, whether pursuant to this
indemnity or as a result of any breach of this Agreement, for losses, expenses,
liabilities or claims for an amount in excess of the proceeds to be received by
such Selling Stockholder (before deducting expenses) from the sale of Shares
hereunder. Additionally, the Company shall indemnify, defend and hold harmless
each Selling Stockholder to the same extent as the Company is obligated to
indemnify, defend and hold harmless the Underwriters pursuant to this Section
11(a), subject to the same limitations as set forth herein.
If any action, suit or proceeding (each, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company or any Selling Stockholder pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly notify the
Company and the Representatives of such Selling Stockholder in writing of the
institution of such Proceeding and the Company or such Selling Stockholder, as
the case may be, shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all reasonably incurred fees and expenses; provided, however, that
the omission to so notify the Company or the Representatives of such Selling
Stockholder shall not relieve the Company or such Selling Stockholder from any
liability which the Company or such Selling Stockholder may have to any
Underwriter or any such person or otherwise, except where such omission results
in material prejudice to the Company or such Selling Stockholder that affects
the rights of the Company or such Selling Stockholder. Such Underwriter or such
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall have
been authorized in writing by the Company or such Selling Stockholder in
connection with the defense of such Proceeding or the Company or such Selling
Stockholder shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Company or such Selling Stockholder
(in which case the Company or such Selling Stockholder shall not have the right
to direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company or such Selling Stockholder and paid as incurred (it being understood,
however, that the Company or such Selling Stockholder shall not be liable for
the expenses of more
-29-
than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Company or such Selling Stockholder shall not be liable for any settlement of
any Proceeding effected without its written consent but if settled with the
written consent of the Company or such Selling Stockholder, the Company or such
Selling Stockholder agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of such
settlement to the extent otherwise required by this Section 11(a).
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have fully reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, the Selling Stockholders
and any person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company, the Selling Stockholders or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information concerning such Underwriter furnished in writing
by or on behalf of such Underwriter through you to the Company expressly for use
in the Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading.
If any Proceeding is brought against the Company, any Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, any
Selling Stockholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such Underwriter shall not
relieve such Underwriter from any liability which such Underwriter may have to
the Company, any Selling Stockholder or any such person or otherwise, except to
the
-30-
extent such Underwriter is materially prejudiced by such omission. The Company,
any Selling Stockholder or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company, any Selling Stockholder or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to or in conflict
with those available to such Underwriter (in which case such Underwriter shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), in any of which events such fees
and expenses shall be borne by such Underwriter and paid as incurred (it being
understood, however, that such Underwriter shall not be liable for the expenses
of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company, any Selling Stockholder and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or failure to act, by or on behalf of such indemnified
party.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and of the Underwriters on the other in
connection with
-31-
the statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Stockholders and the total underwriting discounts
and commissions received by the Underwriters, bear to the aggregate public
offering price of the Shares. The relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company and/or the Selling Stockholders
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending any
Proceeding.
(d) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 11 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
subsection (c) above. Notwithstanding the provisions of this Section 11, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 11 are several in proportion
to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 11 and the covenants, warranties and representations of the Company
and the Selling Stockholders contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each
partner, officer or director of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its directors or officers, any Selling Stockholder or
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company, each of the
Selling Stockholders and each Underwriter agree promptly to notify each other of
the commencement of any Proceeding against it and, in the case of the Company or
the Selling Stockholders, against any of the Company's or Selling Stockholder's
officers or directors, as the case may be, in connection with the issuance and
sale of the Shares, or in connection with the Registration Statement or the
Prospectus.
-32-
12. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page of the Prospectus and the statements set
forth in the [_____ and _____] paragraphs [will cover only: amount of selling
concession and reallowance and overallotment and stabilization] under the
caption "Underwriting" in the Prospectus constitute the only information
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 3 and 11 hereof.
13. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention:
Syndicate Department; and, if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇ ▇▇▇▇▇▇; and if to the
Retiree Plan, shall be sufficient in all respects if delivered or sent to U.S.
Trust Company, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, with a copy thereof to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
Suite 2800, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention W. ▇▇▇▇▇ ▇▇▇▇▇,
Esq.; and if to any of the Selling Stockholders, other than the Retiree Plan,
shall be sufficient in all respects if delivered or sent to ▇▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: [ ].
14. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
15. Submission to Jurisdiction. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company and each of the Selling Stockholders hereby consents to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against UBS or any indemnified party. Each of UBS, the Selling Stockholders and
the Company (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) waives all right to trial by jury in
any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company
and each of the Selling Stockholders agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Company or such Selling Stockholder, as the case may be,
and may be enforced in any other courts to the jurisdiction of which the Company
or such Selling Stockholder, as the case may be, is or may be subject, by suit
upon such judgment.
16. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Selling Stockholders and
the Company and to the extent provided in Section 11 hereof the controlling
persons, partners, directors and officers referred to in such section,
-33-
and their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
17. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
18. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, each of the Selling Stockholders and the Company and their
successors and assigns and any successor or assign of any substantial portion of
the Company's, each Selling Stockholder's and any of the Underwriters'
respective businesses and/or assets.
19. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG,
is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it
is solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
-34-
If the foregoing correctly sets forth the understanding between the
Company, the Selling Stockholders and the several Underwriters, please so
indicate in the space provided below for that purpose, whereupon this agreement
and your acceptance shall constitute a binding agreement between the Company and
the Underwriters, severally.
Very truly yours,
Wheeling-Pittsburgh Corporation
By:
----------------------------------------
Title:
Wheeling-Pittsburgh Steel Corporation Retiree
Benefits Plan by U.S. Trust Company, N.A. as
independent fiduciary
By:
------------------------------------------
Title:
The Selling Stockholders named in Schedule B
attached hereto (other than the Retiree Plan)
By:
------------------------------------------
Title:
-35-
Accepted and agreed to as of the
date first above written, on
behalf of themselves and the
other several Underwriters
named in Schedule A
UBS SECURITIES LLC
KeyBanc Capital Markets, a division
of McDonald Investments Inc.
By: UBS SECURITIES LLC
By:
----------------------------
Title:
By:
----------------------------
Title:
-36-
SCHEDULE A
Underwriter Number of
Firm Shares
UBS SECURITIES LLC
KeyBanc Capital Markets, a division of McDonald Investments Inc.
-----------
Total
===========
-37-
SCHEDULE B
Number of
Selling Stockholders Firm Shares
-------------------- -----------
Wheeling-Pittsburgh Steel Corporation 357,600
Retiree Benefits Plan
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 20,000
▇▇▇▇ ▇. ▇▇▇▇▇▇ 14,286
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 14,286
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 14,286
▇▇▇▇▇ ▇. Page 14,286
▇▇▇▇ ▇. ▇▇▇▇▇ 14,286
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 14,286
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 14,286
-----------
Total 477,602
===========
A-1
EXHIBIT A
Company
Common Stock
($.01 Par Value)
UBS Securities LLC [Date]
[Co-Managers]
As Representative of the several Underwriters
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection
with the proposed
Underwriting Agreement (the "
UNDERWRITING AGREEMENT") to be
entered into by Wheeling-Pittsburgh Corporation (the "COMPANY") and you, as
Representative of the several Underwriters named therein, with respect to the
public offering (the "OFFERING") of Common Stock, par value $0.01 per share, of
the Company (the "COMMON STOCK").
In order to induce you to enter into the
Underwriting Agreement, the
undersigned agrees that for a period beginning the date of the final prospectus
relating to the Offering and ending 90 days after such date (the "LOCK-UP
PERIOD") the undersigned will not, without the prior written consent of UBS
Securities LLC ("UBS"), (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the Securities and Exchange Commission
(the "COMMISSION") in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder with respect to, any
Common Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, whether any
such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (iii) publicly announce an intention to
effect any transaction specified in clause (i) or (ii). The foregoing sentence
shall not apply to (a) the registration of or sale to the Underwriters of any
Common Stock pursuant to the Offering and the
Underwriting Agreement, (b) bona
fide gifts, provided the recipient thereof agrees in writing with the
Underwriters
A-2
to be bound by the terms of this Lock-Up Letter Agreement or (c) dispositions to
any trust for the direct or indirect benefit of the undersigned and/or the
immediate family of the undersigned, provided that such trust agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up Letter Agreement.
In addition, the undersigned hereby waives any rights the undersigned
may have to require registration of Common Stock in connection with the filing
of a registration statement relating to the Offering. The undersigned further
agrees that, for a period of 90 days after the date of the final prospectus
relating to the Offering, the undersigned will not, without the prior written
consent of UBS, make any demand for, or exercise any right with respect to, the
registration of Common Stock of the Company or any securities convertible into
or exercisable or exchangeable for Common Stock, or warrants or other rights to
purchase Common Stock.
If (i) during the period that begins on the date that is 15 calendar
days plus 3 business days before the last day of the Lock-Up Period and ends on
the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (ii) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the Lock-Up Period, the restrictions imposed by this letter shall continue to
apply until the expiration of the date that is 15 calendar days plus 3 business
days after the date on which the issuance of the earnings release or the
material news or material event occurs; provided, however, that this paragraph
will not apply if the Company's shares of Common Stock are "actively traded
securities," as defined in Regulation M, 17 CFR 242.101(c)(1).
Yours very truly,
------------------------------------------
Name:
B-1
EXHIBIT B
Officers' Certificate
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under this Agreement as are
to be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (g) and (h) of Section 8 of this
Agreement have been met.
5. The financial statements and other financial information included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial condition, results of operations, and cash flows of
the Company as of, and for, the periods presented in the Registration
Statement.
