SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT (AMENDMENT NO. 3) PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
(AMENDMENT NO. 6)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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HANDY & HARMAN
(Name of Subject Company)
WHX CORPORATION
HN ACQUISITION CORP.
(Bidders)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
410306 10 4
(CUSIP Number of Class of Securities)
MR. RONALD LABOW
CHAIRMAN OF THE BOARD
WHX CORPORATION
110 EAST 59TH STREET
NEW YORK, NY 10022
TELEPHONE: (212) 355-5200
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
with copies to:
ILAN K. REICH, ESQ.
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 753-7200
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This Statement amends and supplements (i) the Tender Offer Statement on
Schedule 14D-1 filed with the Securities and Exchange Commission on March 6,
1998, by HN Acquisition Corp. (the "Purchaser"), a New York corporation and a
wholly owned subsidiary of WHX Corporation, a Delaware corporation (the
"Parent"), to purchase all outstanding shares of Common Stock, par value $1.00
per share (the "Shares"), of the Company, including the associated Common Stock
Purchase Rights issued pursuant to the Rights Agreement, dated as of January 26,
1989, as amended on April 25, 1996, October 22, 1996 and March 1, 1998 (as so
amended, the "Rights Agreement"), between the Company and ChaseMellon
Shareholder Services L.L.C., as Rights Agent, at a price of $35.25 per Share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated March 6, 1998 (the
"Offer to Purchase"), and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, constitute the "Offer"), and (ii)
the Schedule 13D filed by the Parent and the Purchaser with respect to the
Shares. Capitalized terms used and not defined herein shall have the meanings
assigned to such terms in the Offer to Purchase and the Schedule 14D-1.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 of the Schedule 14D-1/13D is hereby amended and supplemented as
follows:
On March 31, 1998, the Parent entered into a definitive purchase
agreement under which Parent expects to issue $350 million principal amount of
10 1/2% Senior Notes due 2005 in a Rule 144A private placement in connection
with the Offer and the Merger. The Notes are not secured. They are redeemable at
the option of the Parent, in whole or in part, on or after April 15, 2002 and
Parent has an option at any time prior to April 15, 2002 to redeem the Notes, in
whole but not in part, at the applicable redemption prices set forth therein.
The net proceeds of the offering will be used to fund a portion of the purchase
price of the Parent's proposed acquisition of the Company and related
transactions. The closing of the Rule 144A private placement is expected to
occur on April 7, 1998 and is subject to customary terms and conditions for
transactions of this type, including the successful completion of the Offer.
Reference is made to the press release issued by Parent on March 31, 1998, and
the Definitive Purchase Agreement dated March 31, 1998, which are filed as
Exhibits (a)(13) and (b)(1), respectively, hereto and are incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(f) of the Schedule 14D-1/13D is hereby amended and supplemented
as follows:
On March 31, 1998, the Parent issued a Press Release, a copy of which
is attached hereto as Exhibit (a)(13) and is incorporated herein by reference,
relating to the extension of the Offer until 12:00 midnight, New York City time,
on Monday, April 6, 1998, unless further extended. The Offer was scheduled to
expire at 12:00 midnight, New York City time, on Thursday, April 2, 1998.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended to add the following Exhibits (a)(13) and
(b)(1).
(a)(13) Press Release issued by Parent on March 31, 1998.
(b)(1) Definitive Purchase Agreement, dated as of March 31, 1998 by
and among WHX Corporation, Donaldson, Lufkin & Jenrette
Securities Corporation and Citicorp Securities, Inc.,
relating to the issuance and sale of $350,000,000 aggregate
principal amount of 10 1/2% Senior Notes due 2005.
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SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: March 31, 1998
WHX CORPORATION
By: /s/ Stewart E. Tabin
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Name: Stewart E. Tabin
Title: Assistant Treasurer
HN ACQUISITION CORP.
By: /s/ Stewart E. Tabin
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Name: Stewart E. Tabin
Title: Vice President
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EXHIBIT INDEX
(a)(13) Press Release issued by Parent on March 31, 1998.
(b)(1) Definitive Purchase Agreement, dated as of March 31, 1998 by
and among WHX Corporation, Donaldson, Lufkin & Jenrette
Securities Corporation and Citicorp Securities, Inc.,
relating to the issuance and sale of $350,000,000 aggregate
principal amount of 10 1/2% Senior Notes due 2005.
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FOR IMMEDIATE RELEASE
Contact:
Patricia Sturms
Abernathy MacGregor Frank
(212) 371-5999
WHX CORPORATION PLACES $350 MILLION
SENIOR NOTES AND EXTENDS TENDER OFFER
IN CONNECTION WITH HANDY & HARMAN ACQUISITION
New York -- March 31, 1998 -- WHX Corporation (NYSE: WHX)
announced today that it has entered into a definitive purchase agreement for the
sale of $350 million principal amount of 10 1/2% Senior Notes due 2005 in a Rule
144A Private Placement to qualified institutional buyers. The net proceeds from
the offering will be used to fund a portion of the purchase price of WHX's
proposed acquisition of Handy & Harman (NYSE: HNH) and related transactions. As
previously announced, WHX and Handy & Harman have entered into a merger
agreement under which WHX's subsidiary, HN Acquisition Corp., has commenced a
$35.25 per share cash tender offer for all outstanding shares of Handy & Harman.
The Closing of the Rule 144A Private Placement offering is expected to occur on
April 7, 1998 and is subject to customary terms and conditions for transactions
of this type, including the successful completion of the tender offer for Handy
& Harman shares.
WHX also announced that in order to comply with the SEC's
requirement that the tender offer must remain open for at least five business
days following the execution of the definitive purchase agreement, the
expiration date of the tender offer has been extended until 12:00 midnight, New
York City time, on Monday, April 6, 1998. The offer was scheduled to expire at
12:00 midnight, New York City time, on Thursday, April 2, 1998. WHX has been
advised by the depositary that 825,777 shares of Handy & Harman common stock
have been tendered into WHX's offer as of the close of business on Monday, March
30, 1998.
The 10 1/2% Senior Notes due 2005 have not been registered
under the Securities Act of 1933, as amended, or applicable state securities
laws, and may not be offered or sold in the United States absent registration
under the Securities Act of 1933 and applicable state securities laws or
available exemptions from registration requirements.
WHX, indirectly through Wheeling-Pittsburgh Steel Corporation,
operates the ninth largest domestic integrated steel business.
WHX CORPORATION
$350,000,000
10 1/2% Senior Notes due 2005
Purchase Agreement
March 31, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CITICORP SECURITIES, INC.
<PAGE>
WHX CORPORATION
$350,000,000
10 1/2% Senior Notes due 2005
PURCHASE AGREEMENT
March 31, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CITICORP SECURITIES, INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
WHX Corporation, a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ")
and Citicorp Securities, Inc. (each an "INITIAL PURCHASER" and, collectively,
the "INITIAL PURCHASERS") an aggregate of $350,000,000 in principal amount of
its 10 1/2% Senior Notes due 2005 (the "SERIES A NOTES"), subject to the terms
and conditions set forth herein. The Series A Notes are to be issued pursuant to
the provisions of an indenture (the "INDENTURE"), to be dated as of the Closing
Date (as defined below), between the Company and Bank One, N.A., as trustee (the
"TRUSTEE"). The Series A Notes and the Series B Notes (as defined below)
issuable in exchange therefor are collectively referred to herein as the
"NOTES." Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Indenture.
On March 1, 1998, the Company, HN Acquisition Corp., a New York
corporation and a wholly owned subsidiary of the Company ("HN ACQUISITION"), and
Handy & Harman, a New York corporation ("H&H"), entered into an Agreement and
Plan of Merger (the "MERGER AGREEMENT"). The Merger Agreement provides, among
other things, for the commencement of an offer to purchase all of the
outstanding shares of Common Stock (including the associated Common Stock
Purchase Rights) (the "H&H SHARES") of H&H at a price of $35.25 cash per H&H
Share (the "TENDER OFFER") by HN Acquisition and further
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provides that, after the purchase of the H&H Shares pursuant to the Tender
Offer, subject to the satisfaction or waiver of certain conditions, HN
Acquisition will be merged with and into H&H (the "MERGER" and, together with
the Tender Offer, the "ACQUISITION"). H&H will be the surviving corporation in
the Merger, and will continue its corporate existence under New York law as a
wholly owned subsidiary of the Company. HN Acquisition commenced the Tender
Offer on March 6, 1998 pursuant to the terms of an Offer to Purchase dated March
6, 1998 (the "OFFER TO PURCHASE"). The Company will use the net proceeds from
the issuance and sale of the Series A Notes to finance a portion of the purchase
price for the Acquisition.
1. OFFERING MEMORANDUM. The Series A Notes will be offered and sold to
the Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Company has prepared a preliminary offering memorandum, dated March 17, 1998
(including Annex A and Annex B thereto, the "PRELIMINARY OFFERING MEMORANDUM"),
and a final offering memorandum, dated March 31, 1998 (including Annex A
thereto, the "OFFERING MEMORANDUM"), relating to the Series A Notes.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Series A Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
SECOND SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (B) IT IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION
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MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, the principal amounts
of Series A Notes set forth opposite the name of such Initial Purchaser on
Schedule A hereto at a purchase price equal to 97.25% of the principal amount
thereof (the "PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchasers have advised the Company
that the Initial Purchasers will make offers (the "EXEMPT RESALES") of the
Series A Notes purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBS") and (ii) persons permitted to purchase the
Series A Notes in offshore transactions in reliance upon Regulation S under the
Act (each, a "REGULATION S PURCHASER") (such persons specified in clauses (i)
and (ii) being referred to herein as the "ELIGIBLE PURCHASERS"). The Initial
Purchasers will offer the Series A Notes to Eligible Purchasers initially at a
price equal to 100.00% of the principal amount thereof. Such price may be
changed at any time without notice.
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Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Series A Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "COMMISSION")
under the circumstances set forth therein, (i) a registration statement under
the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the Company's
10 1/2% Senior Notes due 2005, Series B (the "SERIES B NOTES"), to be offered in
exchange for the Series A Notes (such offer to exchange being referred to as the
"EXCHANGE OFFER") and (ii) a shelf registration statement pursuant to Rule 415
under the Act (the "SHELF REGISTRATION STATEMENT" and, together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the resale by certain holders of the Series A Notes and to use its best
efforts to cause such Registration Statements to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. This Agreement, the Indenture,
the Notes, the Offering Memorandum, the Preliminary Offering Memorandum and the
Registration Rights Agreement are hereinafter sometimes referred to collectively
as the "OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the Series A
Notes shall be made at the offices of Cahill Gordon & Reindel or such other
location as may be mutually acceptable. Such delivery and payment shall be made
at 9:00 a.m., New York City time, on April 7, 1998 or at such other time as
shall be agreed upon by the Initial Purchasers and the Company. The time and
date of such delivery and the payment are herein called the "CLOSING DATE."
(b) One or more of the Series A Notes in definitive global form,
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), having an aggregate principal amount corresponding to the aggregate
principal amount of the Series A Notes (collectively, the "GLOBAL NOTE"), shall
be delivered by the Company to the Initial Purchasers (or as the Initial
Purchasers direct) in each case with any transfer taxes thereon duly paid by the
Company against payment by the Initial Purchasers of the Purchase Price thereof
by wire transfer in same day funds to the order of the Company. The Global Note
shall be made available to the Initial Purchasers for inspection not later than
9:30 a.m., New York City time, on the business day immediately preceding the
Closing Date.
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5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the
Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Series A Notes for offering or sale in
any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Series A Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Series A Notes under any state securities or
Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers to the Company as many copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchasers may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchasers'
compliance with their representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial
Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Series A
Notes are outstanding, (i) not to make any amendment or supplement to the
Offering Memorandum of which the Initial Purchasers shall not previously have
been advised or to which the Initial Purchasers shall reasonably object after
being so advised and (ii) to prepare promptly upon the Initial Purchasers'
reasonable request, any amendment or supplement to the Offering Memorandum which
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may be necessary or advisable in connection with such Exempt Resales or such
market-making activities.
(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply in all material respects with applicable law.
(e) Prior to the sale of all Series A Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate in all material respects with the
Initial Purchasers and counsel to the Initial Purchasers in connection with the
registration or qualification of the Series A Notes for offer and sale to the
Initial Purchasers and pursuant to Exempt Resales under the securities or Blue
Sky laws of such jurisdictions as the Initial Purchasers may request and to
continue such registration or qualification in effect so long as required for
Exempt Resales and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, (i) to mail and make
generally available as soon as practicable after the end of each fiscal year to
the record holders of the Notes a financial report of the Company and its
subsidiaries on a consolidated basis, all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated
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statement of cash flows (and similar financial reports of all unconsolidated
subsidiaries, if any) as of the end of and for such period, and for the period
from the beginning of such year to the close of such quarterly period, together
with comparable information for the corresponding periods of the preceding year.
(g) So long as the Notes are outstanding, to furnish to the Initial
Purchasers as soon as available copies of all reports or other communications
furnished by the Company to its security holders or furnished to or filed with
the Commission or any national securities exchange on which any class of
securities of the Company is listed and such other publicly available
information concerning the Company and/or its subsidiaries as the Initial
Purchasers may reasonably request.
(h) So long as any of the Series A Notes remain outstanding and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder of Series A Notes in connection with any sale thereof
and any prospective purchaser of such Series A Notes from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and accountants of the Company in connection with the sale and
delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt
Resales, and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum, the
Offering Memorandum and all amendments and supplements to any of the foregoing
(including financial statements), including the mailing and delivering of copies
thereof to the Initial Purchasers and persons designated by it in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt
Resales, including any transfer or other taxes payable thereon, (iii) all costs
of printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Series A Notes, (iv) all expenses in connection with the
registration or qualification of the Series A Notes for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Initial Purchasers in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of
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printing certificates representing the Series A Notes, (vi) all expenses and
listing fees in connection with the application for quotation of the Series A
Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated
Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee
and the Trustee's counsel in connection with the Indenture and the Notes, (viii)
the costs and charges of any transfer agent, registrar and/or depositary
(including DTC), (ix) any fees charged by rating agencies for the rating of the
Notes, (x) all costs and expenses of the Exchange Offer and any Registration
Statement as set forth in the Registration Rights Agreement and (xi) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section.
(j) To use its best efforts to effect the inclusion of the Series A
Notes in PORTAL and to maintain the listing of the Series A Notes on PORTAL for
so long as the Series A Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer of the
Notes, and to comply with all of its agreements set forth in the representation
letters of the Company to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer.
(l) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire debt securities of
the Company substantially similar to the Notes (other than the Notes), without
the prior written consent of the Initial Purchasers.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Series A Notes to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes under the Act.
(n) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(o) To cause the Exchange Offer to be made in the appropriate form
to permit Series B Notes registered pursuant to the Act to be offered in
exchange for the Series A Notes and to comply with all applicable federal and
state securities laws in connection with the Exchange Offer.
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(p) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(q) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Series A Notes.
(r) To use its best efforts and to take all actions reasonably
required to consummate the Merger promptly after the Closing Date.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the
date hereof, the Company represents and warrants to, and agrees with, the
Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the Offering Memorandum
(which will be sent with the confirmation of sales) do not, and any supplement
or amendment to them will not, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Preliminary Offering Memorandum or the Offering Memorandum (or any
supplement or amendment thereto) based upon information relating to the Initial
Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use therein. To the knowledge of the Company, no stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries has been, and
immediately after consummation of the Tender Offer will have been, duly
incorporated, is, and will be, validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has, and will
have, the corporate power and authority to carry on its business as described in
the Preliminary Offering Memorandum and the Offering Memorandum and to own,
lease and operate its properties, and each is, and will be, duly qualified or
licensed and is, and will be, in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification or
license, except where the failure to be so qualified or licensed would not have
a material adverse effect on the business, pro-
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<PAGE>
spects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights.
(d) Immediately following consummation of the Tender Offer, the
entities listed on Schedule B-1 hereto will be the only subsidiaries, direct or
indirect, of the Company. All of the outstanding shares of capital stock of each
of the Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature, except as
set forth on Schedule B-3 hereto (each, a "Lien"). Immediately following
consummation of the Tender Offer, the entities listed on Schedule B-2 hereto
will be the only other entities in which the Company has a direct or indirect
equity interest in excess of 5%. The number of shares or other equity interests
owned by the Company representing the percentage interests each as listed across
from each entity on Schedule B-2 (other than with respect to equity interests
owned by H&H and its subsidiaries) have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any Liens.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The Indenture has been duly authorized by the Company and, on
the Closing Date, will have been validly executed and delivered by the Company.
When the Indenture has been duly executed and delivered by the Company and the
Trustee, the Indenture will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration, if applicable, and the availability of equitable or other
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "TRUST
INDENTURE ACT"), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
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(g) The Series A Notes have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Series A Notes have been issued, executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Series A Notes
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by the effect of applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration, if applicable, and the availability of equitable or
other remedies may be limited by equitable principles of general applicability.
On the Closing Date, the Series A Notes will conform in all material respects as
to legal matters to the description thereof contained in the Offering
Memorandum.
(h) On the Closing Date, the Series B Notes will have been duly
authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration, if applicable, and the availability of equitable or other
remedies may be limited by equitable or other principles of general
applicability.
(i) The Registration Rights Agreement has been duly authorized by
the Company and, on the Closing Date, will have been duly executed and delivered
by the Company. When the Registration Rights Agreement has been duly executed
and delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by the effect of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if applicable, and the availability
of equitable or other remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Registration Rights Agreement will
conform in all material respects as to legal matters to the description thereof
in the Offering Memorandum.
(j) The Merger Agreement has been duly authorized, executed and
delivered by the Company and HN Acquisition, and is a valid and binding
agreement of the Company and HN Acquisition, enforceable against the Company and
HN Acquisition in accordance with its terms except as (i) the enforceability
thereof may be limited by
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the effect of applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if applicable, and
the availability of equitable or other remedies may be limited by equitable
principles of general applicability.
(k) Neither the Company nor any of its subsidiaries is, and
immediately after consummation of the Tender Offer will not be, in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, (i) to which the Company or
any of its subsidiaries is a party or (ii) by which the Company or any of its
subsidiaries or their respective property is bound.
(l) Except as otherwise disclosed in the Merger Agreement, the
execution, delivery and performance of this Agreement, the Merger Agreement and
the other Operative Documents by the Company, compliance by the Company with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, (x) to which the Company or
any of its subsidiaries is a party or (y) by which the Company or any of its
subsidiaries or their respective property is bound, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property, except, solely in
the case of H&H and its subsidiaries, where such violation or conflict would not
have a Material Adverse Effect, (iv) result in the imposition or creation of (or
the obligation to create or impose) a Lien under any agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound or (v) result
in the termination, suspension or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization which, solely
with respect to H&H and its subsidiaries, is material to H&H and its
subsidiaries taken as a whole or result in the impairment of any other material
right of H&H and its subsidiaries.
(m) There are, and immediately after consummation of the Tender
Offer there will be, other than as disclosed in the Offering Memorandum, no
legal or gov-
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ernmental proceedings pending or to the best of the Company's knowledge,
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject, which
might result, singly or in the aggregate, in a Material Adverse Effect.
(n) Except as has been disclosed in the Offering Memorandum, neither
the Company nor any of its subsidiaries has, and immediately after consummation
of the Tender Offer will have, violated any foreign, federal, state or local law
or regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS") or any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or the rules and regulations
promulgated thereunder, except for such violations which would not have a
Material Adverse Effect.
(o) Except as disclosed in the Offering Memorandum and the Merger
Agreement, there are, and immediately after consummation of the Tender Offer
there will be, no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(p) Except as otherwise disclosed in the Merger Agreement, each of
the Company and its subsidiaries has, and immediately after consummation of the
Tender Offer will have, such permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an "AUTHORIZATION") of,
and has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including without limitation, under any applicable Environmental
Laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. Except as otherwise disclosed in
the Merger Agreement, each such Authorization is, and immediately after
consummation of the Tender Offer will be, valid and in full force and effect and
each of the Company and its subsidiaries is, and immediately after consummation
of the Tender Offer will be, in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any
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such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a Material Adverse Effect.
(q) The accountants, Price Waterhouse LLP, that have certified the
financial statements for the Company included in the Preliminary Offering
Memorandum and the Offering Memorandum are independent public accountants with
respect to the Company, as required by the Act and the Exchange Act. The
historical financial statements, together with related notes, set forth in the
Preliminary Offering Memorandum and the Offering Memorandum comply as to form in
all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
(r) The accountants for Wheeling-Nisshin, Inc., Coopers & Lybrand
LLP, that have certified the financial statements for Wheeling-Nisshin, Inc.
included in the Preliminary Offering Memorandum and the Offering Memorandum are
independent public accountants with respect to the Company, as required by the
Act and the Exchange Act. The historical financial statements, together with
related notes, for Wheeling-Nisshin, Inc. set forth in the Preliminary Offering
Memorandum and the Offering Memorandum comply as to form in all material
respects with the requirements applicable to registration statements on Form S-1
under the Act.
(s) The accountants for H&H, KPMG Peat Marwick LLP, that have
certified the financial statements for H&H included in the Offering Memorandum
are independent public accountants with respect to the Company, as required by
the Act and the Exchange Act. The historical financial statements, together with
related notes, for H&H set forth in the Offering Memorandum comply as to form in
all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
(t) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such statements and
related notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical information
and data set
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forth in the Offering Memorandum (and any amendment or supplement thereto) are,
in all material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Company.
(u) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Preliminary
Offering Memorandum and the Offering Memorandum (i) comply as to form in all
material respects with the applicable requirements of Regulation S-X promulgated
under the Exchange Act, (ii) have been prepared in all material respects in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements, and (iii) have been properly computed on the bases
described therein; the assumptions used in the preparation of the pro forma
financial statements and other pro forma financial information included in the
Preliminary Offering Memorandum and the Offering Memorandum are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(v) The Company is not and, after giving effect to the offering and
sale of the Series A Notes and the application of the net proceeds thereof as
described in the Offering Memorandum, will not be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
(w) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company (except with regard to options held by WPN Corp.) or to require the
Company to include such securities with the Notes registered pursuant to any
Registration Statement.
(x) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on their behalf has taken, and none of them will take, any action
that might cause this Agreement or the issuance or sale of the Series A Notes to
violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the
Board of Governors of the Federal Reserve System.
(y) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company that it is considering imposing) any
condition (financial or otherwise) on the Company's retaining any rating
assigned to the Company or any securities of the Company or (ii) has indicated
to the Company that it is considering (a) the downgrad-
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<PAGE>
ing, suspension, or withdrawal of, or any review for a possible change that does
not indicate the direction of the possible change in, any rating so assigned or
(b) any change in the outlook for any rating of the Company or any securities of
the Company.
(z) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum and
after giving effect to the Acquisition (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), (i) there has not
occurred any material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, other than, in the case
of clause (iii) only, in the ordinary course of business consistent with past
practice.
(aa) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
(bb) When the Series A Notes are issued and delivered pursuant to
this Agreement, the Series A Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as any security of the Company that is
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(cc) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company or any of its
representatives (other than the Initial Purchasers, as to whom the Company makes
no representation) in connection with the offer and sale of the Series A Notes
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Series A Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
(dd) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the TIA.
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<PAGE>
(ee) Neither the Company nor any of its affiliates or any person
acting on its behalf (other than the Initial Purchasers, as to whom the Company
makes no representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S under the Act ("REGULATION S") with
respect to the Series A Notes.
(ff) Subject to the accuracy of the representations and warranties
of the Initial Purchasers in Section 7 hereof, the Series A Notes offered and
sold in reliance on Regulation S have been and will be offered and sold only in
offshore transactions.
(gg) Subject to the accuracy of the representations and warranties
of the Initial Purchasers in Section 7 hereof, the sale of the Series A Notes
pursuant to Regulation S is not part of a plan or scheme to evade the
registration provisions of the Act.
(hh) The Company, its affiliates and all persons acting on its
behalf (other than the Initial Purchasers, as to whom the Company makes no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Series A Notes outside the United States and, in connection therewith, the
Offering Memorandum will contain the disclosure required by Rule 902(h).
(ii) The Series A Notes sold in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 903(c)(3) of the Act and only upon
certification of beneficial ownership of such Series A Notes by non-U.S. persons
or U.S. persons who purchased such Series A Notes in transactions that were
exempt from the registration requirements of the Act.
(jj) No registration under the Act of the Series A Notes is required
for the sale of the Series A Notes to the Initial Purchasers as contemplated
hereby or for the Exempt Resales assuming the accuracy of the Initial
Purchasers' representations and warranties and agreements set forth in Section 7
hereof.
(kk) Except as disclosed in the Offering Memorandum, no
relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of its subsidiaries on the other
hand, which would be required by Item 404 of Regulation S-K under the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement filed by the Company on Form S-1
filed with the Commission.
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<PAGE>
(ll) Except as otherwise disclosed in the Merger Agreement, the
Company and its subsidiaries have, and immediately after consummation of the
Tender Offer will have, good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them
which is material to the business of the Company and its subsidiaries, in each
case free and clear of all Liens and defects, except such as are described in
the Offering Memorandum, in the Merger Agreement or in the Second Amended and
Restated Credit Agreement dated as of December 28, 1995 among
Wheeling-Pittsburgh Steel Corporation, the lenders party thereto and Citibank,
N.A., as Agent and as Initial Issuing Bank, as amended, or such as do not
materially affect the value of such property and do not interfere in any
material respect with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any material real property and buildings
held under lease by the Company and its subsidiaries are, and immediately after
consummation of the Tender Offer will be, held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere in any material respect with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries, in each case
except as described in the Offering Memorandum or in the Merger Agreement.
(mm) Except as otherwise disclosed in the Merger Agreement, all
material tax returns required to be filed by the Company and each of its
subsidiaries in any jurisdiction have been, and immediately after consummation
of the Tender Offer will have been, filed, other than those filings being
contested in good faith, and all material taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
subsidiaries have been, and immediately after consummation of the Tender Offer
will have been, paid, other than those being contested in good faith and for
which adequate reserves have been provided.
(nn) To the knowledge of the Company, no action has been taken and
no law, statute, rule or regulation or order has been enacted, adopted or issued
by any governmental agency or body which prevents the execution, delivery and
performance of any of the Operative Documents or the issuance of the Series A
Notes or suspends the sale of the Series A Notes in any jurisdiction referred to
in Section 5(e); and no injunction, restraining order or other order or relief
of any nature by a federal or state court or other tribunal of competent
jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the Series A
Notes in any jurisdiction referred to in Section 5(e).
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<PAGE>
(oo) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers at the
Closing shall be deemed to be a representation and warranty by the Company to
the Initial Purchasers as to the matters covered thereby.
(pp) The Company has delivered to the Initial Purchasers true and
complete copies of the Merger Agreement and the Offer to Purchase, including all
schedules and exhibits thereto, and there have been no amendments, supplements,
alterations, modifications or waivers thereto or in the exhibits or schedules
thereto, except as have been delivered to the Initial Purchasers and as are
reasonably acceptable to the Initial Purchasers.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel for the Company and counsel for the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each of the
Initial Purchasers, severally and not jointly, represents and warrants to the
Company, and agrees that:
(a) Such Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (i) is not acquiring the Series A Notes
with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (ii) will be reoffering and reselling the
Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium
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or broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Series A Notes
only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A Notes only
from, (i) Eligible Purchasers that such Initial Purchaser reasonably believes
are QIBs and (ii) Regulation S Purchasers, in each case, that agree that (x) the
Series A Notes purchased by them may be resold, pledged or otherwise transferred
within the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the Act, as in
effect on the date of the transfer of such Series A Notes, only (A) to the
Company or any of its subsidiaries, (B) to a person who the seller reasonably
believes is a QIB purchasing for its own account or for the account of a QIB in
a transaction meeting the requirements of Rule 144A under the Act, (C) in an
offshore transaction (as defined in Rule 902 under the Act) meeting the
requirements of Rule 904 of the Act, (D) in a transaction meeting the
requirements of Rule 144 under the Act, (E) in accordance with another exemption
from the registration requirements of the Act (and based upon an opinion of
counsel acceptable to the Company) or (F) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States or any other applicable jurisdiction and (y)
they will deliver to each person to whom such Series A Notes or an interest
therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser or any of its affiliates or any
person acting on its or their behalf has engaged or will engage in any directed
selling efforts within the meaning of Regulation S with respect to the Series A
Notes.
(f) The Series A Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(g) The sale of the Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not offered or sold
and will not offer or sell the Series A Notes in the United States or to, or for
the benefit or account of, a U.S. Person (other than a distributor), in each
case, as defined in Rule 902
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under the Act (i) as part of its distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the offering of the Series
A Notes pursuant hereto and the Closing Date, other than in accordance with
Regulation S of the Act or another exemption from the registration requirements
of the Act. Such Initial Purchaser agrees that, during such 40-day restricted
period, it will not cause any advertisement with respect to the Series A Notes
(including any "tombstone" advertisement) to be published in any newspaper or
periodical or posted in any public place and will not issue any circular
relating to the Series A Notes, except such advertisements as permitted by and
include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Series A Notes by it to any distributor, dealer or person receiving
a selling concession, fee or other remuneration during the 40-day restricted
period referred to in Rule 903(c)(3) under the Act, it will send to such
distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:
The Series A Notes covered hereby have not been
registered under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and may not be offered
and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of your
distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the Offering and
the Closing Date, except in either case in accordance
with Regulation S under the Securities Act (or Rule
144A), and in connection with any subsequent sale by you
of the Series A Notes covered hereby in reliance on
Regulation S during the period referred to above to any
distributor, dealer or person receiving a selling
concession, fee or other remuneration, you must deliver
a notice to substantially the foregoing effect. Terms
used above have the meanings assigned to them in
Regulation S.
(j) Such Initial Purchaser agrees that the Series A Notes offered
and sold in reliance on Regulation S will be represented upon issuance by a
global security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903(c)(3) of the
Act and only upon certification of beneficial ownership of such Series A Notes
by non-U.S. persons or U.S. persons who purchased such Series A Notes in
transactions that were exempt from the registration requirements of the Act.
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<PAGE>
(k) Such Initial Purchaser further represents and agrees that (i) it
has not offered or sold and will not offer or sell any Series A Notes to persons
in the United Kingdom prior to the expiration of the period of six months from
the issue date of the Series A Notes, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Series A Notes in, from or otherwise
involving the United Kingdom and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Series A Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(l) Such Initial Purchaser agrees that it will not offer, sell or
deliver any of the Series A Notes in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Series A Notes in such
jurisdictions. Such Initial Purchaser understands that no action has been taken
to permit a public offering in any jurisdiction outside the United States where
action would be required for such purpose.
Each Initial Purchaser acknowledges that the Company and, for purposes
of the opinions to be delivered to each Initial Purchaser pursuant to Section 9
hereof, counsel for the Company and counsel for the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and each Initial
Purchaser hereby consents to such reliance.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, its directors, its officers and each person, if any, who controls
such Initial Purchaser within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any reasonable legal
or other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue state-
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ment or alleged untrue statement of a material fact contained in the Offering
Memorandum (or any amendment or supplement thereto), the Preliminary Offering
Memorandum or any Rule 144A Information provided by the Company to any holder or
prospective purchaser of Series A Notes pursuant to Section 5(h) or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to an Initial Purchaser furnished in
writing to the Company by such Initial Purchaser.
(b) The Initial Purchasers agree, severally but not jointly, to
indemnify and hold harmless the Company, its directors and officers and each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, to the same extent as the foregoing
indemnity from the Company to the Initial Purchasers but only with reference to
information relating to the Initial Purchasers furnished in writing to the
Company by the Initial Purchasers expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Initial Purchasers shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchasers). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to timely assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that representation of both parties is inappropriate due
to actual or potential different legal defenses available to them (in which case
the indemnifying party shall not have the right to assume the
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defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Series A Notes or (ii) if the allocation provided by clause
8(d)(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
8(d)(i) above but also the relative fault of the Company, on the one hand, and
the Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits re-
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ceived by the Company, on the one hand, and the Initial Purchasers, on the other
hand, shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Series A Notes (before deducting expenses) received by
the Company and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Series A Notes, in each
case as set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company, on the one hand, and the Initial Purchasers, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Initial Purchasers, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
PRO RATA allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, the Initial
Purchasers shall not be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by such Initial
Purchasers exceeds the amount of any damages which the Initial Purchasers have
otherwise been required to pay by reason of such untrue 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 Initial Purchasers' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective principal amount
of Series A Notes purchased by each of the Initial Purchasers hereunder and not
joint.
(e) The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
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9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase the Series A Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects, except for
those representations and warranties of the Company which are qualified as to
materiality, which representations and warranties shall be true and correct in
all respects, on the Closing Date with the same force and effect as if made on
and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation, the
placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in
the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or any
development involving a prospective change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Series A Notes on the terms and in the manner contemplated in the Offering
Memorandum.
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<PAGE>
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by the President and the Chief Financial Officer (or if
there is no Chief Financial Officer, the Treasurer) of the Company, confirming
the matters set forth in Sections 6(a), 9(a) and 9(b) and stating that the
Company has complied with all the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied on or prior to
the Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Olshan Grundman Frome & Rosenzweig LLP, counsel for the Company, to the
effect that:
(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described
in the Offering Memorandum and to own, lease and operate its
properties, except as to corporations organized outside the United
States we are, with your consent, relying on certificates of the
respective jurisdiction of organization;
(ii) each of the Company and its subsidiaries (except with
regard to H&H and its direct and indirect subsidiaries, to the best
of our knowledge) is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of
property requires such qualification or license, except where the
failure to be so qualified or licensed would not have a Material
Adverse Effect, except as to corporations organized outside the
United States we are, with your consent, relying on certificates of
the respective jurisdiction of organization;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights;
(iv) all of the outstanding shares of capital stock of each
of the Company's direct and indirect subsidiaries (except with
regard to H&H and its direct and indirect subsidiaries, to the best
of our knowledge) have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company,
free and clear of any Lien, except as set forth in Schedule B-3
hereto;
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<PAGE>
(v) the Series A Senior Notes have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms except as (x) the enforceability thereof may be limited
by the effect of applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of equitable or
other remedies or other may be limited by equitable principles of
general applicability;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms except as (x) the enforceability thereof may be limited by the
effect of applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of equitable or
other remedies may be limited by equitable principles of general
applicability;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as (x) the enforceability thereof
may be limited by the effect of applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of equitable or
other remedies may be limited by equitable principles of general
applicability;
(ix) the Series B Senior Notes have been duly authorized;
(x) the statements under the captions "Risk Factors-Holding
Company Structure; Limitations on Access to Cash Flow," "Risk
Factors-Significant Outstanding Indebtedness of the Company," "Risk
Factors-Possibility of Monetary and Injunctive Penalties in
Connection with SEC Enforcement Action," "Risk Factors-Joint Venture
Obligations," "Risk Factors-Substantial Employee Postretirement
Obligations; Possible Inability to Merge Pension
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Plans," "Business-Legal Proceedings-Environmental Matters,"
"Business Legal-Proceedings-SEC Enforcement Action," "Business-Legal
Proceedings-General Litigation," "Description of Notes,"
"Description of Principal Indebtedness" and "Description of
Receivables Facility" in the Offering Memorandum, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present in all material
respects such legal matters, documents and proceedings;
(xi) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of
such counsel's knowledge after due inquiry, neither the Company nor
any of its subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries,
taken as a whole, (i) to which the Company or any of its
subsidiaries is a party or (ii) by which the Company or any of its
subsidiaries or their respective property is bound (we have assumed
for purposes of this opinion that H&H and its direct and indirect
subsidiaries have no material indenture, loan agreement, mortgage,
lease or other agreement or instrument other than as set forth in
the Merger Agreement);
(xii) the execution, delivery and performance of this
Agreement, the Merger Agreement and the other Operative Documents by
the Company, the compliance by the Company with all provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws
of the Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument (x) to
which the Company or any of its subsidiaries is a party or (y) by
which the Company or any of its subsidiaries or their respective
property is bound, that is material to the Company and its
subsidiaries, taken as a whole, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction
over the Company, any of its subsidiaries or their respective
property, except where such violation or conflict would not have a
Material Adverse Effect, (iv) result in the imposition or creation
of (or the
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obligation to create or impose) a Lien under, any agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their
respective property is bound, except where such imposition or
creation would not have a Material Adverse Effect or (v) result in
the termination, suspension or revocation of any Authorization (as
defined below) which is material to the Company and its subsidiaries
taken as a whole or result in the impairment of any other material
right of the Company or any of its subsidiaries or result in any
other impairment of the rights of the holder of any such
Authorization;
(xiii) after due inquiry but without independent
investigation, other than as set forth on the Offering Memorandum
such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result,
singly or in the aggregate, in a Material Adverse Effect;
(xiv) the Company is not and, after giving effect to the
offering and sale of the Series A Notes and the application of the
net proceeds thereof as described in the Offering Memorandum, will
not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xv) to the best of such counsel's knowledge after due
inquiry but without independent investigation, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file
a registration statement under the Act with respect to any
securities of the Company (except with regard to options held by WPN
Corp.) or to require the Company to include such securities with the
Notes registered pursuant to any Registration Statement;
(xvi) the Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. It is not necessary in connection with the
offer, sale and delivery of the Series A Notes to the Initial
Purchasers in the manner contemplated by this Agreement or in
connection with the Exempt Resales to qualify the Indenture under
the TIA;
(xvii) no registration under the Act of the Series A Notes
is required for the sale of the Series A Notes to the Initial
Purchasers as contemplated by
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this Agreement or for the Exempt Resales assuming that (i) each
Initial Purchaser is a QIB or a Regulation S Purchaser, (ii) the
accuracy of, and compliance with, the Initial Purchasers'
representations and agreements contained in Section 7 of this
Agreement and (iii) the accuracy of the representations of the
Company set forth in Sections 5(h) and 6(cc), (ee), (ff), (gg) and
(hh) of this Agreement;
(xviii) such counsel has no reason to believe that, as of
the date of the Offering Memorandum or as of the Closing Date, the
Offering Memorandum, as amended or supplemented, if applicable
(except for the financial statements and other financial data
included therein, as to which such counsel need not express any
belief) contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(xix) the Merger Agreement has been duly authorized,
executed and delivered by the Company and HN Acquisition, and is a
valid and binding agreement of the Company and HN Acquisition,
enforceable against the Company and HN Acquisition in accordance
with its terms, except as (i) the enforceability thereof may be
limited by the effect of applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights
of acceleration, if applicable, and the availability of equitable or
other remedies may be limited by equitable principles of general
applicability; and
(xx) the Tender Offer and Offer to Purchase, as amended,
comply in all material respects with all applicable provisions of,
and rules and regulations promulgated under, the Securities Act and
the Exchange Act.
The opinion of Olshan Grundman Frome & Rosenzweig LLP described in
Section 9(e) above shall be rendered to you at the request of the Company and
shall so state therein. In giving such opinion with respect to the matters
covered by Section 9(e)(xviii), Olshan Grundman Frome & Rosenzweig LLP may state
that their opinion and belief are based upon their participation in the
preparation of the Offering Memorandum and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified. For opinions other than those with
respect to federal law, the laws of the State of New York or Delaware corporate
laws, Olshan Grundman Frome & Rosenzweig LLP may rely on opinions of local
counsel and certificates of government authorities, where appropriate.
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(f) The Initial Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, of Cahill Gordon & Reindel, counsel for the
Initial Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers.
(g) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Price Waterhouse LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
financial statements and certain financial information for the Company contained
in the Offering Memorandum.
(h) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Coopers & Lybrand LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
financial statements and certain financial information for Wheeling-Nisshin,
Inc. contained in the Offering Memorandum.
(i) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from KPMG Peat Marwick LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
financial statements and certain financial information for H&H contained in the
Offering Memorandum.
(j) The Series A Notes shall have been approved by the NASD for
trading and duly listed in PORTAL.
(k) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Company and the Trustee.
(l) The Company shall have executed the Registration Rights
Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company.
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(m) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
Closing Date.
(n) Each condition to the closing of the Tender Offer contemplated
by the Merger Agreement and the Offer to Purchase shall have been satisfied or
waived. There shall exist at and as of the Closing Date no conditions that would
constitute a default (or an event that with notice or the lapse of time, or
both, would constitute a default) under the Merger Agreement. On the Closing
Date, the Tender Offer shall have been consummated on terms that conform in all
material respects to the description thereof in the Offering Memorandum and the
Initial Purchasers shall have received evidence satisfactory to the Initial
Purchasers of the consummation thereof other than the payment for the H&H Shares
with the net proceeds from the issuance and sale of the Series A Notes.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the Initial
Purchasers' judgment, is material and adverse and, in the Initial Purchasers'
judgment, makes it impracticable to market the Series A Notes on the terms and
in the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
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If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Series A Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Series
A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Series A Notes to be purchased on such
date by all Initial Purchasers, each non-defaulting Initial Purchaser shall be
obligated severally, in the proportion which the principal amount of the Series
A Notes set forth opposite its name in Schedule A bears to the aggregate
principal amount of the Series A Notes which all the non-defaulting Initial
Purchasers, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Series A Notes which such
defaulting Initial Purchaser or Initial Purchasers, as the case may be, agreed
but failed or refused to purchase on such date; provided that in no event shall
the aggregate principal amount of the Series A Notes which any Initial Purchaser
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 10 by an amount in excess of one-ninth of such principal amount of
the Series A Notes without the written consent of such Initial Purchaser. If on
the Closing Date any Initial Purchaser or Initial Purchasers shall fail or
refuse to purchase the Series A Notes and the aggregate principal amount of the
Series A Notes with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of the Series A Notes to be purchased by all
Initial Purchasers and arrangements satisfactory to the Initial Purchasers and
the Company for purchase of such Series A Notes are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Initial Purchaser and the Company. In any such case which
does not result in termination of this Agreement, either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Offering
Memorandum or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to WHX
Corporation, 110 East 59th Street, New York, New York 10022, Attention: Chief
Financial Officer and (ii) if to the Initial Purchasers, c/o Donaldson, Lufkin &
Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the Initial Purchasers set
forth in or made
-34-
<PAGE>
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Series A Notes, regardless of
(i) any investigation, or statement as to the results thereof, made by or on
behalf of the Initial Purchasers, the officers or directors of the Initial
Purchasers, any person controlling an Initial Purchaser, the Company, the
officers or directors of the Company or any person controlling the Company, (ii)
acceptance of the Series A Notes and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Series A Notes are not delivered by or on behalf
of the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company agrees to reimburse the
Initial Purchasers for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(i) hereof. The Company also agrees to reimburse the
Initial Purchasers and their officers, directors and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act for any and all fees and expenses (including
without limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under this Section 8).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Initial
Purchasers, the Initial Purchasers' directors and officers, any controlling
persons referred to herein, the directors of the Company and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Series A Notes from the Initial Purchasers merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York, without regard to the conflict of law rules
thereof.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
-35-
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Initial Purchasers.
Very truly yours,
WHX CORPORATION
By:/s/ Ronald LaBow
------------------------------
Name: Ronald LaBow
Title: Chairman
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:/s/ Ted Iantuono
------------------------------
Name: Ted Iantuono
Title: Vice President
CITICORP SECURITIES, INC.
By: /s/ Tim Shoyer
------------------------------
Name: Tim Shoyer
Title: Vice President
-36-
<PAGE>
SCHEDULE A
Principal Amount
Initial Purchaser of Notes
----------------- ------------------
Donaldson, Lufkin & Jenrette Securities Corporation....... $ 245,000,000
Citicorp Securities, Inc................................. $ 105,000,000
--------------
Total.............................................. $ 350,000,000
==============
<PAGE>
SCHEDULE B-1
SUBSIDIARIES
WHX SUBSIDIARIES
Wheeling-Pittsburgh Corporation
Unimast, Inc.
WPC Land Company
Wheeling-Pittsburgh Capital Corporation
WHX Entertainment Corporation
WHEELING-PITTSBURGH CORPORATION SUBSIDIARIES:
Wheeling-Pittsburgh Steel Corporation
Consumers Mining Company
Wheeling-Empire Company
Monessen Southwestern Railway Company
Mingo Oxygen Company
Pittsburgh-Canfield Corporation
Wheeling Construction Products, Inc.
WHEELING-PITTSBURGH STEEL CORPORATION SUBSIDIARIES:
Wheeling Pittsburgh Funding, Inc.
WP Steel Venture Corp.
CONSUMERS MINING COMPANY SUBSIDIARY:
W-P Coal Company
WHEELING-PITTSBURGH CONSTRUCTION PRODUCTS, INC. SUBSIDIARY:
Champion Metal Products, Inc.
WHEELING-EMPIRE COMPANY SUBSIDIARY:
W-P Cliffs Partnership
<PAGE>
HANDY & HARMAN OPERATING SUBSIDIARIES:
Camdel Metals Corporation
Continental Industries, Inc.
ele Corporation
Handy & Harman of Canada, Limited
Handy & Harman Electronic Materials Corporation
Handy & Harman (Europe) Limited
Handy & Harman Tube Company, Inc.
Indiana Tube Corporation
Indiana Tube Danmark A/S
Lucas-Milhaupt, Inc.
Maryland Specialty Wire, Inc.
Micro-Tube Fabricators, Inc.
Olympic Manufacturing Group, Inc.
Rigby-Maryland (Stainless) Ltd.
Sumco Inc.
Willing B Wire Corporation
HANDY & HARMAN HOLDING COMPANIES
Handy & Harman (Asia) S.A.
Handy & Harman International, Ltd.
Handy & Harman Peru, Inc.
Handy & Harman UK Holdings Limited
HANDY & HARMAN NON-OPERATING COMPANIES
Alloy Ring Service, Inc.
Daniel Radiator Corporation
H&H Productions, Inc.
Handy & Harman Automotive Group, Inc.
KJ-VMI Realty, Inc.
Pal-Rath Realty, Inc.
Platina Laboratories, Inc.
Sheffield Street Corporation
SWM, Inc.
<PAGE>
HANDY & HARMAN FOREIGN SALES CORPORATION
H&H Ltd.
<PAGE>
SCHEDULE B-2
JOINT VENTURES
ENTITY NUMBER OF SHARES PERCENTAGE INTEREST
- ------ ---------------- -------------------
Wheeling-Nisshin, Inc. 2,500 35.7%
Ohio Coatings Company 600 50.0%
Wheeling Downs Partnership N/A 50.0%
W-P Cliffs Partnership N/A 98.0%
Wheeling-Ispat Partnership N/A 50.0%
Empire Iron Mining Partnership N/A 12.5%
HANDY & HARMAN JOINT VENTURES
Electro-Connection Finishers General
Partnership N/A 70%
Handy & Harman (Asia), S.A. 1,250,000 50%
Handy & Harman (HK) Limited 100%(1)
Handy & Harman Manufacturing
(Singapore) Pte. Ltd. 87 1/2%(2)
- -----------------------
(1) Owned by Handy & Harman (Asia), S.A.
(2) Handy & Harman (Asia), S.A. owns 75% and Handy & Harman owns 12 1/2%.
<PAGE>
SCHEDULE B-3
PLEDGED SUBSIDIARY STOCK
Wheeling-Pittsburgh Funding, Inc.
Pittsburgh-Canfield Corporation
Wheeling Construction Products, Inc.
Champion Metal Products, Inc.
