Exhibit
10.26
EXECUTION VERSION
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this
“Agreement”) is entered into as of the 15th day of
March, 2007, by and between Wheeling-Pittsburgh Corporation, a
Delaware corporation (the “Company”) and each of the
investors set forth on the signature pages hereto (each, an
“Investor,” and collectively, the
“Investors”).
WHEREAS, the Company is offering, in
compliance with Rule 506 of Regulation D of the
Securities Act of 1933, as amended (the “Securities
Act”), to certain accredited investors in a private placement
transaction, convertible notes in a series with an aggregate
principal amount of up to Fifty-Million Dollars ($50,000,000),
substantially in the form attached hereto as Exhibit A (the
“Notes”).
WHEREAS, on the terms and subject to
the conditions set forth herein, each Investor desires to purchase
a Note in the face principal amount set forth opposite
Investor’s name on Exhibit B , which Notes shall be
convertible into shares (subject to adjustment as set forth in the
Notes, the “Conversion Shares,” and together with the
Notes, the “Securities”) of the Company’s common
stock, par value $0.001 per share (the “Common Stock”)
pursuant to the terms of the Notes.
WHEREAS, the Company desires to set
forth the terms and conditions of and to provide for the issuance
of the Notes described herein and with respect to certain
registration rights relating to the shares of Common Stock issuable
upon conversion of the Notes, pursuant to their terms.
NOW, THEREFORE, for and in
consideration of the mutual premises contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Investors hereby
agree as follows:
1)
ISSUANCE OF THE CONVERTIBLE NOTES. Subject to the terms and
conditions set forth in this Agreement, the Company hereby agrees
to sell to each Investor, and each Investor hereby agrees to
purchase from the Company, the face principal amount of the Notes
set forth opposite each Investor’s name on
Exhibit B (the “Purchase Price”). The Note
delivered to an Investor will be delivered in the form of a single
Note registered in the name of the Investor (or in the name of such
nominee or in such other denominations as Investor may specify).
The terms and conditions of the Notes are incorporated herein by
reference.
2) THE
CLOSING. The purchase and sale of the Notes by the Company to the
Investors and the delivery of the Purchase Price to the Company
(the “Closing”) will take place on the second business
day following the satisfaction of all conditions precedent set
forth in Section 7 hereof (or such other date as the Company
and the Investors shall determine), at the offices of the Company,
1134 Market Street, Wheeling, WV 26003. At the Closing,
(a) each Investor shall pay or tender to the Company the
applicable Purchase Price in immediately available funds by wire
transfer to the Company in accordance with the wiring instructions
provided by the Company; and (b) the Company shall issue and
deliver to each Investor the Note(s) acquired hereunder by such
Investor.
3)
REPRESENTATIONS AND WARRANTIES OF INVESTORS. Each Investor
represents and warrants individually and not jointly to the Company
as of the date hereof as follows:
a)
Investor is an “accredited investor” as that term is
defined in Rule 501 of Regulation D promulgated under the
Securities Act.
b) The
Notes are being acquired by Investor for investment purposes only,
for Investor’s own account and not with the view to any
resale or distribution thereof, and Investor is not participating,
directly or indirectly, in an underwriting of such Notes, and will
not take, or cause to be taken, any action that would cause
Investor to be deemed an “underwriter” of such Notes as
defined in Section 2(11) of the Securities Act.
c)
Investor acknowledges that Investor has been offered an opportunity
to ask questions of, and receive answers from, the Company
concerning the Company and Investor’s proposed purchase of
the Notes, and that such Investor is satisfied with the
Company’s response to any such requests.
d)
Investor has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of an investment in the Notes, is able to bear such risks,
and has obtained, in Investor’s judgment, sufficient
information from the Company to evaluate the merits and risks of an
investment in the Notes. Investor has evaluated the risks of
investing in the Company and has determined that the Notes are a
suitable investment for Investor.
e)
Investor has full power and authority to enter into this Agreement
and to perform its obligations hereunder.
f) All
action on the part of Investor necessary for the authorization,
execution and delivery of this Agreement and for the performance of
all obligations of Investor hereunder has been taken, including
with respect to all required corporate or organizational grant of
authority with respect to such Investors as are corporations or
other forms of entity. This Agreement has been duly executed and
delivered by Investor and constitutes a valid and legally binding
obligation of Investor, enforceable in accordance with its
respective terms, subject to (i) the laws of bankruptcy and
the laws affecting creditors’ rights generally and
(ii) the availability of equitable remedies.
g)
Investor is not relying on the Company with respect to tax and
other investment advice in connection with its decision to purchase
the Notes. Investor acknowledges that it has been advised by the
Company to consult with its tax or financial consultants prior to
entering into this Agreement.
4)
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Investors as of the date hereof as
follows:
a) The
Company is duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation. The
Company is duly qualified as a foreign corporation to do business
and is in good standing in each jurisdiction in which its
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ownership or use of property or the nature of the business
conducted by it makes such qualification necessary, except where
the failure to be so qualified or in good standing would not have a
material adverse effect on the business, operations, assets,
financial condition or prospects of the Company (a “Material
Adverse Effect”). The Company has full power and authority:
(i) to own, lease, use and operate its properties;
(ii) to carry on its business as presently operated and
conducted; and (iii) to enter into this Agreement and perform
its obligations hereunder, including the issuance, sale and
delivery of the Notes.
b) The
execution and delivery of this Agreement and of the Notes by the
Company and the consummation by it of the transactions contemplated
hereby (including without limitation, the issuance of the
Securities) have been duly authorized by the Company’s Board
of Directors and no further consent or authorization of the
Company, its Board of Directors, or its stockholders is required.
All action on the part of the Company necessary for the
authorization, execution and delivery of this Agreement and for the
performance of all obligations of the Company hereunder has been
taken. This Agreement and the Notes have been duly executed and
delivered by the Company and constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
respective terms, subject to (i) the laws of bankruptcy and
the laws affecting creditors’ rights generally and
(ii) the availability of equitable remedies.
c) The
authorized capital stock of the Company consists of 80,000,000
shares of Common Stock and 20,000,000 shares of preferred stock,
par value $0.001 per share (“Preferred Stock”). At the
close of business on February 28, 2007, (i) 15,287,293
shares of Common Stock were issued and outstanding (excluding
shares of Common Stock held by the Company in its treasury),
(ii) 6,666 shares of Common Stock were held by the Company in
its treasury, (iii) 940,566 shares of the Company’s
Common Stock were reserved for issuance under the Company’s
2003 Management Stock Incentive Plan (of which 19,221 shares were
subject to outstanding stock options and 318,310 shares were
subject to outstanding stock unit awards), (iv) 16,469 shares
of Common Stock were reserved for distribution to creditors pending
resolution of certain disputed claims, and (v) no shares of
Preferred Stock were issued or outstanding or held in the
Company’s treasury. All outstanding shares of Common Stock
have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights. There are no
anti-dilution or price adjustment provisions contained in any
security issued and outstanding by the Company (or in any agreement
providing rights to security holders) that will be triggered by the
issuance of the Securities. Except as may be described in any
documents which have been publicly filed by any of the
Company’s stockholders, to the Company’s knowledge,
there are no agreements between the Company’s stockholders
with respect to the voting or transfer of the Company’s
capital stock or with respect to any other aspect of the
Company’s affairs
d) The
Company has timely filed and furnished all required reports,
schedules, forms, prospectuses, and registration, proxy and other
statements with the Securities and Exchange Commission
(“SEC”) since August 1, 2003 (collectively and
together with all documents filed on a voluntary basis on Form 8-K,
and in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the “SEC
Documents”). As of their respective effective dates (in the
case of SEC Documents that are registration statements filed
pursuant to the requirements of the Securities Act) and as of their
respective SEC filing
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dates
(in the case of all other SEC Documents), each SEC Document
complied in all material respects with the applicable requirements
of the Securities Act or the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and the rules and
regulations thereunder, as applicable. Except to the extent that
information contained in any SEC Document has been revised or
superseded by a later-filed SEC Document or by information supplied
to the Investors in writing by the Company, none of the SEC
Documents contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
e) The
Conversion Shares to be issued upon conversion of the Notes, when
issued in compliance with the provisions of this Agreement and the
Notes, will be validly issued and will be free of any liens or
encumbrances, except as provided under applicable securities
laws.
f) The
execution, delivery and performance of this Agreement and each of
the documents contemplated hereby, including the Notes, by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of Securities) will not (i) conflict with or result
in a violation of any provision of the certificate of
incorporation, as amended, of the Company or the bylaws, as
amended, of the Company, (ii) violate or conflict with, or result
in a breach of any provision of, or constitute a default (or an
event which with notice or lapse of time or both could become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement,
indenture, patent, patent license or instrument to which the
Company is a party, or (iii) result in a violation of any
federal, state, local, municipal, foreign, international,
multinational or other law, rule, regulation, order, judgment,
decree, ordinance, policy or directive, including those entered,
issued, made, rendered or required by any court, administrative or
other governmental body, agency, or authority, or any arbitrator
(collectively, “Legal Requirements”) (including federal
and state securities laws and regulations (assuming the accuracy of
the representations and warranties of each Investor contained in
Section 3(a) hereof) and regulations of any self-regulatory
organizations to which the Company or its securities are subject)
applicable to the Company or by which any property or asset of the
Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect). The Company is not in violation of its
certificate of incorporation, bylaws or other organizational
documents and the Company is not in default (and no event has
occurred which with notice or lapse of time would result in a
default) under, and the Company has not taken any action or failed
to take any action that would give to others any rights of
termination, amendment, acceleration or cancellation of, any
agreement or instrument to which the Company is a party or by which
any property or assets of the Company is bound or affected, except
for possible defaults as would not, individually or in the
aggregate, have a Material Adverse Effect. Except with respect to
any filings or notices related to the issuance of the Conversion
Shares to be filed with Nasdaq, if any, and as required under the
Securities Act and any applicable state securities laws, the
Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court,
governmental agency, regulatory agency, self regulatory
organization or stock market or any third party in order for it to
execute, deliver or perform any of its obligations under this
Agreement or the
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Notes.
All consents, authorizations, orders, filings and registrations
that the Company is required to effect or obtain pursuant to the
preceding sentence have been obtained or effected on or prior to
the date hereof.
g) As
of their respective dates, the financial statements of the Company
included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with United
States generally accepted accounting principles, consistently
applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements,
to the extent they may not include footnotes, year end adjustments
or may be condensed or summary statements) and fairly present in
all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for
the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). Except as set
forth in the financial statements of the Company included in the
SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to December 31, 2006, and
(ii) obligations under contracts and commitments incurred in
the ordinary course of business and not required under generally
accepted accounting principles to be reflected in such financial
statements, which, individually or taken in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
h)
Except with respect to the transactions contemplated hereby and as
set forth in the SEC Documents filed since such date, since
December 31, 2005 (i) the Company and each of its
subsidiaries has conducted its business only in the ordinary
course, consistent with past practice, and since that date, no
changes have occurred which would reasonably be expected to have a
Material Adverse Effect; and (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade
payables, accrued expenses and other liabilities incurred in the
ordinary course of business consistent
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