EXHIBIT 10.16(c)
WHEELING-PITTSBURGH CORPORATION
STOCK TRANSFER RESTRICTION AND VOTING AGREEMENT
This Stock Transfer Restriction and Voting Agreement (the "Agreement")
is made as of this 1st day of August 2003 by and among Wheeling-Pittsburgh
Corporation, a Delaware corporation (the "Company"), and WesBanco Bank, Inc.,
solely in its capacity as trustee (the "Trustee") under the VEBA Trust (as
defined below), and is agreed to by U.S. Trust Company, N.A., in its capacity as
independent fiduciary (the "Independent Fiduciary") of the Retiree Plan (as
defined below) with respect to Discretionary Management (as defined below) of
the Company's securities held by the VEBA Trust.
WHEREAS, pursuant to (a) the Company's Third Amended Joint Plan of
Reorganization and Third Amended Disclosure Statement Pursuant to Section 1125
of the Bankruptcy Code for Debtor's Third Amended Joint Plan of Reorganization,
each dated May 19, 2003 (the "Reorganization Plan"), and (b) the 2003 Settlement
Agreement among Wheeling-Pittsburgh Steel Corporation ("WPSC"), the Company and
United Steelworkers of America, AFL-CIO-CLC ("USWA") entered into connection
with the Reorganization Plan, the Company has agreed to contribute to the VEBA
Trust 4,000,000 shares (the "Initial Shares") of the Common Stock of the
Company;
WHEREAS, as of the Effective Date (as defined in the Reorganization
Plan), the Company expects to have substantial net operating loss carryforwards
(the "NOLs"), which are deemed to be material to the Company;
WHEREAS, the Company's ability to retain or make use of the NOLs is
dependent, in part, on the transfer of shares of the Company's common stock by
certain significant stockholders of the Company;
WHEREAS, it is in the mutual best interests of the Company and the VEBA
Trust, as a significant stockholder of the Company, that the Company retain such
NOLs to the extent possible; and
WHEREAS, the parties hereto agree that it is in the best interests of
the Company and the Retiree Plan that sales of all shares of Common Stock held
by the VEBA Trust occur in an orderly manner;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. DEFINITIONS. Certain capitalized terms are used in this Agreement as
defined in the preamble, recitals and other sections of this Agreement. In
addition, certain other capitalized terms are used in this Agreement as
specifically defined in this Section 1 as follows:
"Affiliate" shall mean, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such first-named Person. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlled by" and "under
common control with") shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Common Stock" means the Company's Common Stock, $0.01 par value per
share.
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"Discretionary Management" shall mean the extent to which the
Independent Fiduciary is permitted to exercise authority and control over the
Common Stock held by the VEBA Trust under this Agreement, under the engagement
letter agreement of August 1, 2003 between the Company and the Independent
Fiduciary and under the Registration Rights Agreement dated as of the date
hereof among the parties hereto.
"Disposition" means, with respect to any Shares, any sale, assignment,
transfer, pledge, hypothecation, mortgage, disposition of any kind or
encumbrance thereof.
"First Restriction Period" means the two-year period commencing on the
Effective Date.
"Person" shall mean an individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization, and any government, governmental department or agency or political
subdivision thereof.
"Remaining Shares" means those Initial Shares held by the Trustee as of
the first day following the last day of the First Restriction Period.
"Retiree Plan" means the Wheeling-Pittsburgh Steel Corporation Retiree
Benefits Plan.
"Second Restriction Period" means the two-year period commencing on the
day following the last day of the First Restriction Period.
"Shares" means any shares of Common Stock of the Company held by the
VEBA Trust from time to time, including without limitation the Initial Shares.
"VEBA Trust" means the trust that is a part of the Retiree Plan.
2. RESTRICTIONS ON TRANSFERS.
2.1. First Restriction Period. The parties hereto agree that, during
the First Restriction Period, the Trustee shall not effect or cause to occur any
Disposition of any of the Initial Shares, unless at such time the Shares held by
the Trustee represent fewer than five percent of the then issued and outstanding
shares of Common Stock of the Company. Notwithstanding the foregoing sentence,
however, the Company agrees that it may, in the exercise of its reasonable
discretion, authorize the Disposition of some number of Shares during the First
Restriction Period to the extent that the Company believes that such Disposition
will not disrupt the orderly trading of the Common Stock or impair the Company's
ability to retain or make use of the NOLs.
2.2. Second Restriction Period. The parties hereto agree that, during
the Second Restriction Period, the Trustee shall not effect or cause to occur
any Disposition of more than one half of the Remaining Shares within any
consecutive twelve-month period. The Trustee further agrees to use commercially
reasonably efforts to cause any Disposition of Remaining Shares to occur in a
manner reasonably calculated, to the extent practicable, not to disrupt the
orderly trading of the Common Stock (such as, by way of example, by causing the
Disposition to occur in several transactions over a period of weeks or months).
Notwithstanding the foregoing sentence, however, the Company agrees that it may,
in the exercise of its reasonable discretion, authorize the Disposition of a
greater number of Remaining Shares during any consecutive twelve-month period
during the Second Restriction Period to the extent that the Company believes
that such Disposition will not disrupt the orderly trading of the Common Stock.
2.3. Transfers to Affiliates. The Trustee shall not effect or cause to
occur any Disposition of any Shares to an Affiliate of the VEBA Trust or of the
Trustee unless and until such Affiliate first executes and delivers to the
Company a written agreement, in form and substance reasonably satisfactory to
the Company,
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pursuant to which such Affiliate agrees to become party to this Agreement and to
be bound by all the terms and conditions hereof.
2.4. Legend. Each stock certificate representing any of the Shares
shall bear a legend indicating the existence of this Agreement and of the
restrictions on transfer imposed hereby.
2.5. Registration Rights Agreement. Simultaneous with the execution and
delivery of this Agreement, the parties hereto are entering into a Registration
Rights Agreement with respect to the Shares.
3. VOTING AGREEMENT. Appendix F to the 2003 Settlement Agreement
between WPSC, the Company and USWA prohibits the voting of up to 1,300,000
Initial Shares for the election of the Company's directors. In accordance with
Appendix F, the Trustee agrees that, for so long as it holds any Initial Shares,
it shall abstain from voting 1,300,000 of the Initial Shares (or such number of
Initial Shares as the Trustee may then hold, if less than 1,300,000 Initial
Shares) for the election of any directors of the Company. Each reference herein
to a particular number of Shares shall be automatically and proportionately
adjusted in the event of any stock dividend, stock split, stock combination,
recapitalization, or other similar event affecting the Common Stock.
4. GENERAL.
4.1. Assignment. None of the parties to this Agreement shall assign or
delegate any of their respective rights or obligations under this Agreement
without the prior written consent of each of the other parties hereto. The
parties intend that the terms of this Agreement apply to any successor to either
the Trustee or the Independent Fiduciary of the VEBA Trust and agree to use
their best reasonable efforts to cause any such successor to agree in writing to
become a party to this Agreement.
4.2. Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
4.3. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
(i) If to the Company, to:
Wheeling-Pittsburgh Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier: 000-000-0000
Attn: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
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with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: 000-000-0000
Attn: Xxxxxx X. Xxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
(ii) If to the Trustee, to:
WesBanco Bank, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust
with a copy to:
Phillips, Gardill, Xxxxxx & Xxxxxxxx, PLLC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
(iii) If to the Independent Fiduciary, to:
U.S Trust Company, N.A.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier: 000-000-0000
Attention: Xxxxxx Xxxxxxxx,
Managing Director
with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly
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given or made and to have become effective (i) when delivered in hand to the
party to which it was directed, (ii) if sent by telex, telecopier, facsimile
machine or telegraph and properly addressed in accordance with the foregoing
provisions of this Section 4.3, when received by the addressee, (iii) if sent by
commercial courier guaranteeing next business day delivery, on the business day
following the date of delivery to such courier, or (iii) if sent by first-class
mail, postage prepaid, and properly addressed in accordance with the foregoing
provisions of this Section 4.3, (A) when received by the addressee, or (B) on
the third business day following the day of dispatch thereof, whichever of (A)
or (B) shall be the earlier.
4.4. Amendments and Waivers. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retrospectively or prospectively), with, but only with, the written consent of
each of the other parties hereto.
4.5. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4.6. No Waiver of Future Breach. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof. No assent, express or implied, by any party hereto
to any breach of or default in any agreement or condition herein contained on
the part of any other party hereto shall constitute a waiver of or assent to any
succeeding breach of or default in the same or any other agreement or condition
hereof by such other party.
4.7. No Implied Rights or Remedies; Third Party Beneficiaries. Except
as otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
or by reason of this Agreement and there are no intended third party
beneficiaries under or by reason of this Agreement.
4.8. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
4.9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, excluding choice of law
rules thereof.
4.10. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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IN WITNESS WHEREOF, this Stock Restriction and Voting Agreement has
been executed under seal by the parties hereto as of the day and year first
above written.
WHEELING-PITTSBURGH CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title:Vice President, Secretary and Treasurer
WESBANCO BANK, INC.,
solely in its capacity as Trustee under the VEBA Trust and not
individually
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Trust Officer
ASSENT AND ACKNOWLEDGEMENT
The undersigned, by assenting to and acknowledging this Agreement, agrees not to
direct or otherwise cause the Trustee to take any action in violation of the
terms of this Agreement:
U.S. TRUSTCOMPANY, N.A.,
in its capacity as independent fiduciary of the Retiree Plan in respect of
discretionary actions concerning any of the Company's securities held by the
VEBA Trust
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title:Managing Director
