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Exhibit 2.1
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF
MERGER AND COMBINATION
THIS FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER AND COMBINATION (this “
Amendment ”), is made as of October 22, 2007 to
that certain Agreement and Plan of Merger and Combination dated as
of March 16, 2007 (the “ Agreement ”) by
and among Clayton Acquisition Corporation (“ NewCo
”), Wheeling-Pittsburgh Corporation (“ WPC
”), Wales Merger Corporation (“ WPC Merger Sub
”), Esmark Incorporated (“ Esmark ”), and
Clayton Merger, Inc. (“ Esmark Merger Sub ”).
Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Agreement.
RECITALS
WHEREAS, pursuant to
Section 8.1 of the Agreement, the Agreement may be amended by
a written agreement of the parties thereto, by action taken by
their respective Boards of Directors;
WHEREAS, the undersigned
parties to the Agreement, representing all parties thereto, desire
to amend the Agreement as set forth herein; and
WHEREAS, the parties hereto
acknowledge that the execution and delivery of this Amendment is an
inducement to each party hereto to consummate the transactions
contemplated by the Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and other good and valuable
consideration, the adequacy and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Section 2.1(e) of the
Agreement is hereby amended and restated in its entirety to read as
follows:
Conversion of the WPC
Shares . Subject to Sections 2.2(g) and 2.2(h) hereof, at the
Effective Time, each issued and outstanding share of WPC Common
Stock (each, a “ WPC Common Share ”), other than
WPC Common Shares issued and held in the treasury of WPC as of the
Effective Time, shall be converted into the right to receive,
subject to the election of the holder thereof, the following (the
“ WPC Merger Consideration ”):
(i) one share of NewCo Common
Stock (the “ Stock Consideration ”) (the ratio
of 1 to 1 being referred to herein as the “ WPC Exchange
Ratio ”); or
(ii) (A) one share of NewCo
Common Stock and (B) one non-transferable right to subscribe
for and purchase a newly issued share of NewCo Common Stock (each,
a “ Purchase Right ”) for each WPC Common Share
held by such stockholder. Each Purchase Right shall entitle the
stockholder thereof to purchase from NewCo one share of NewCo
Common Stock at a price of $19.00
per share (the “
Subscription Price ”) (collectively, the “
Rights Consideration ”). Purchase Rights shall be
exercisable, in whole or in part by the holders thereof, from the
Election Date until 5:00 p.m. Pittsburgh local time, on the day
prior to the WPC Stockholders Meeting (the “ Rights Option
Period ”); or
(iii) The right to receive
$20.00 per share (each, a “ Put Right ”). Put
Rights shall be exercisable, in whole or in part by the holders
thereof, during the Rights Option Period. If a Put Right is not
validly exercised during the Rights Option Period, such Put Right
shall be converted into Stock Consideration.
2. Section 2.2(d) of the
Agreement is hereby amended and restated in its entirety to read as
follows:
Election and Exercise
Procedure .
(i) An Election shall have
been properly made only if the Exchange Agent shall have received
at its designated office, by 5:00 p.m., Pittsburgh local time, on
the date designated for the Election by WPC, which shall be at
least five (5) Business Days before the date of the WPC
Stockholders Meeting (the “ Election Date ”),
(1) a Form of Election properly completed and signed and
accompanied by (x) Certificates representing the WPC Common
Shares to which such Form of Election relates, duly endorsed in
blank or otherwise in form acceptable for transfer on the books of
WPC, (y) by an appropriate guarantee of delivery of such WPC
Certificates as set forth in such Form of Election from a firm that
is an “eligible guarantor institution” (as defined in
Rule 17Ad-15 under the Exchange Act), or (z) such other
documentation reasonably acceptable to the Exchange Agent to effect
the Election; provided that such WPC Certificates are in
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