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common
stock, par value $0.01 per share (“common
stock”);
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preferred
stock, par value $0.01 per share (“preferred
stock”);
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warrants
to purchase common stock, preferred stock, or debt securities;
or
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any
combination of the above, separately or as
units.
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Each time
we offer securities, we will provide a prospectus supplement containing more
information about the particular offering together with this
prospectus. The prospectus supplement also may add, update or change
information contained in this prospectus. This prospectus may not be
used to offer and sell securities without a prospectus supplement.
The
securities may be sold directly by us to investors, through agents designated
from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section
entitled “Plan of Distribution” in this prospectus. If any agents or
underwriters are involved in the sale of any securities, the names of such
agents or underwriters and any applicable fees, commissions, discounts and
over-allotment options will be set forth in the applicable prospectus
supplement.
Our
common stock is traded on the NASDAQ Capital Market under the symbol “WXCO.” As
of June 10, 2009, the aggregate market value of our outstanding Common Stock
held by non-affiliates was approximately $9,397,487, based on 12,178,565 shares
of outstanding common stock, of which 3,012,015 shares are held by
non-affiliates, and a per share price of $3.12 based on the closing sale price
of our common stock as quoted on the NASDAQ Capital Market on June 10,
2009. As of the date hereof we have not offered any securities
pursuant to General Instruction I.B.6. of Form S-3 during the prior 12 calendar
month period that ends on and includes the date hereof.
Investing
in these securities involves significant risks. We strongly recommend
that you read carefully the risks we describe in this prospectus as well as in
any accompanying prospectus supplement and the risk factors that are
incorporated by reference in this prospectus from our filings made with the
Securities and Exchange Commission. See “Risk Factors” on page
5.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
This
prospectus is dated
June
__
, 2009.
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Table
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf” registration
process. Pursuant to General Instruction I.B.6 of Form S-3, we are
permitted to use the registration statement of which this prospectus forms a
part to sell a maximum amount of securities equal to one-third (33.33%) of the
aggregate market value of our outstanding, publicly held voting and non-voting
common equity held by non-affiliates of our company in any 12 month
period. Under this shelf registration process, we may offer from time
to time shares of our common stock, shares of our preferred stock, debt
securities, warrants to purchase common stock, preferred stock or debt
securities, or any combination thereof, separately or as units, registered
hereby up to the lesser of this maximum amount or a total dollar amount of
$25,000,000.
This
prospectus provides you with a general description of the
securities. Each time we offer the securities, we will provide a
prospectus supplement that describes the terms of the offering. The
prospectus supplement also may add, update or change information contained in
this prospectus. Before making an investment decision, you should
read carefully both this prospectus and any prospectus supplement together with
the documents incorporated by reference into this prospectus as described below
under the heading “Incorporation by Reference.” The registration
statement that contains this prospectus, including the exhibits to the
registration statement and the information incorporated by reference, provides
additional information about the securities. That registration
statement can be read at the SEC web site (www.sec.gov) or at the SEC public
reference room as discussed below under the heading “Where You Can Find
Additional Information.” You should rely only on the information
provided in the registration statement, this prospectus and in any prospectus
supplement, including the information incorporated by reference. We
have not authorized anyone to provide you with different
information. You should not assume that the information in this
prospectus or any supplement to this prospectus is accurate at any date other
than the date indicated on the cover page of these documents. We are
not making an offer to sell the securities in any jurisdiction where the offer
or sale is not permitted.
We may
sell the securities to or through underwriters, dealers or agents or directly to
purchasers. We and our agents reserve the sole right to accept or
reject in whole or in part any proposed purchase of the
securities. The prospectus supplement, which we will provide each
time we offer the securities, will set forth the names of any underwriters,
dealers or agents involved in the sale of the securities, and any related fee,
commission or discount arrangements. See “Plan of
Distribution.”
Unless
the context otherwise requires, the terms “we,” “our,” “us,” and the “Company”
refer to WHX Corporation (“WHX”), together with all of its
subsidiaries.
ABOUT
THE COMPANY
WHX
Corporation
WHX, the
parent company, manages a group of businesses on a decentralized
basis. WHX owns Handy & Harman (“H&H”), a diversified holding
company whose strategic business units encompass three reportable segments:
Precious Metal, Tubing, and Engineered Materials. In April 2007, WHX
acquired Bairnco Corporation (“Bairnco”). Bairnco manages business
units in three reportable segments: Arlon Electronic Materials, Arlon Coated
Materials, and Kasco Replacement Products and Services. The business
units of H&H and Bairnco principally operate in North America.
The WHX
Business System (the “System”) is at the heart of the operational improvement
methodologies for all WHX companies and employees. Strategy Deployment forms the
roof of the business system and serves to convert strategic plans into tangible
actions ensuring alignment of goals throughout each of our businesses. The
pillars of the System are the key performance indicators used to monitor and
drive improvement. The steps of the System are the specific tool
areas that drive the key metrics and overall performance. WHX
utilizes lean tools and philosophies to reduce and eliminate waste coupled with
the Six Sigma tools targeted at variation reduction. The System is a
proven, holistic approach to increasing shareholder value and achieving long
term, sustainable, and profitable growth.
Our
principal executive offices are located at 1133 Westchester Avenue, White
Plains, NY 10604, and our telephone number is (914) 461-1300.
H&H
Precious Metal Segment
H&H’s
Precious Metal activities include the fabrication of precious metal and their
alloys into brazing alloys and the utilization of precious metal in precision
electroplating. H&H’s brazing alloys are used to join most common metals as
well as specialty metals with strong, hermetic joints. H&H offers
a wide variety of these metal joining products, including gold, silver,
palladium, copper, nickel, and aluminum based materials. These
brazing alloys are fabricated into a variety of engineered forms and are used in
many industries including automotive, air conditioning, general industrial and
other metal-joining industries. H&H is also engaged in precision
electroplating (often using gold, silver, palladium and various base metals) of
electronic and electrical components primarily for use in the automotive
industry. H&H’s profits from precious metal products are
principally derived from the “value added” of processing and fabricating and not
from the purchase and resale of precious metal. In accordance with
general practice, prices to customers are principally a composite of two
factors: (1) the value of the precious metal content of the product and (2) the
“fabrication value,” which includes the cost of base metals, labor, overhead,
financing and profit.
H&H
Tubing Segment
H&H
manufactures a wide variety of steel tubing products. The Stainless
Steel Seamless Tubing Group manufactures small-diameter precision-drawn seamless
tubing both in straight lengths and coils. The Stainless Steel Tubing
Group’s capabilities in long continuous drawing of seamless stainless steel
coils allow this Group to serve the petrochemical infrastructure and
shipbuilding markets. The Stainless Steel Tubing Group also
manufactures products for use in the medical, semiconductor fabrication,
aerospace and defense industries. The Specialty Tubing Group
manufactures welded carbon steel coated and uncoated tubing in straight lengths
and coils with a primary focus on products for the refrigeration, HVAC and
automotive industries. In addition to producing bulk tubing, the
Specialty Tubing Group also produces value added products for the appliance and
HVAC industries by fabricating tubing into sealed system
components.
H&H
Engineered Materials Segment
The
H&H Engineered Materials Segment supplies products to the construction and
building industries. H&H manufactures fasteners and fastening systems for
the U.S. commercial flat roofing industry. Products are sold to
building and roofing material wholesalers. The products are also private labeled
to roofing system manufacturers. A line of specialty fasteners is produced for
the building products industry for fastening applications in log homes,
landscaping, masonry, and wood decks. H&H also manufactures
plastic and steel fittings and connectors for natural gas and water distribution
service lines along with exothermic welding products for electrical grounding,
cathodic protection, and lightning protection. In addition,
H&H manufactures electro-galvanized and painted cold rolled sheet steel
products primarily for the construction, entry door, container and appliance
industries.
Arlon
Electronic Materials Segment
Arlon
Electronic Materials’ (“Arlon EM”) principal products include high performance
materials for the printed circuit board industry and silicone rubber-based
insulation materials used in a broad range of industrial, military/aerospace,
consumer and commercial markets.
Arlon EM
supplies high technology materials to the printed circuit board (“PCB”)
industry. Arlon EM products are marketed principally to original
equipment manufacturers (“OEMs”) and PCB manufacturers around the world by a
direct technical sales force in many cases in support of country and area
specific distributors and manufacturer’s representatives. Arlon EM’s
conventional laminates product line includes a wide variety of specialty
polyimide and epoxy laminates and bonding films, as well as other high
performance thermoset laminates. These materials are used in
demanding commercial and military market applications including high density
interconnect, surface mount technology, heat sink bonding, semiconductor
testing, wireless communications and microvia PCBs. The microwave and
radio frequency product area offers fluoropolymers (i.e. polytetrafluorethylene
(“PTFE”)), ceramic-filled fluoropolymers, and other non-PTFE laminates that
deliver the electrical performance needed in frequency-dependent circuit
applications such as analog, digital and personal communication systems, high
frequency military electronics, microwave antennas and cellular base station
electronics. These products are supplied as copper-clad laminates
with bonding plies or prepregs for production of multi-layer printed
circuits.
Arlon EM
also manufactures a line of silicone rubber materials used in a broad range of
military, consumer, industrial and commercial products. Typical
applications and products include: silicone bagging materials for producing
composite parts; silicone insulating tapes for electric traction motor coil
windings; insulation materials for industrial and commercial flexible heaters;
silicone materials for high temperature hose and duct markets; insulating tape
for medium and high voltage electrical splices and self-fusing tapes for a
variety of industrial and commercial applications; as well as compliant,
thermally or electrically conductive silicone film adhesives known as
Thermabond™ for heat sink-bonding to printed circuit boards.
Arlon
Coated Materials Segment
Arlon
Coated Materials’ (“Arlon CM”) principal products include adhesive coated cast
and calendared vinyl films, cast vinyl fabric, custom-engineered laminates, and
coated and laminated films, foils, foams and papers used in a broad range of
industrial, consumer and commercial products.
Arlon CM
specialty graphic films are marketed under the Arlon and Calon® brand names and
include cast and calendared vinyl films that are manufactured in a wide variety
of colors, face stocks and adhesive systems. These vinyl films are
used in commercial and electrical signage, point of purchase displays, highway
signage, fleet markings, and other commercial advertising
applications. Arlon CM also manufactures laminated vinyl fabrics for
corporate identity programs. These products are marketed under the
ArlonFlex® brand name and complement the Calon® specialty graphic
films.
Arlon CM
also manufactures and markets custom-engineered laminates and coated
products. Typical applications include insulating foam tapes for
thermopane windows, electrical insulation materials for motors and transformers,
thermal insulation panels for appliances and cars, durable printing stock,
coated foil tapes and transfer adhesives used in industrial assembly, and single
and double-coated foam and film tapes and other custom engineered laminates for
specific industrial applications.
Kasco
Replacement Products and Services Segment
Kasco
Replacement Products and Services (“Kasco”) is a provider of meat-room products
and maintenance services for the meat and deli departments of supermarkets; for
restaurants; for meat and fish processing plants; and for distributors of
electrical saws and cutting equipment throughout North America, Europe, Asia and
South America. These products and services include band saw blades
for cutting meat and fish, band saw blades for cutting wood and metal, grinder
plates and knives for grinding and cutting meat, repair and maintenance services
for food equipment in retail grocery and restaurant operations, electrical saws
and cutting machines, seasoning products, and other related butcher supply
products.
Kasco’s
products and services are sold under a number of brand names including Kasco
Corporation and Atlanta Sharptech in the United States and Canada, Atlantic
Service Company in the United Kingdom and Canada, Bertram & Graf in Germany,
and Biro France and EuroKasco in France.
RISK
FACTORS
Investing
in our securities involves significant risks. Before making an
investment decision, you should read and carefully consider the risk factors
described in our SEC filings that are incorporated by reference in this
prospectus, including those described in the section entitled “Risk Factors” in
our Annual Report on Form 10-K for the year ended December 31, 2008, our
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009 and,
if applicable, in any accompanying prospectus supplement used in connection with
an offering of the securities. These risk factors may be amended or
supplemented or superseded from time to time by other reports we file with the
SEC in the future. Our business, financial condition or results of
operations could be materially and adversely affected if any of the events or
developments described therein actually occurs. The trading price of
our common stock or other securities could decline due to any of these risks,
and you may lose all or part of your investment.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus
contain certain “forward-looking statements” within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”), and Section
21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
that reflect our current expectations and projections about our future results,
performance, prospects and opportunities. We have tried to identify these
forward-looking statements by using words such as “may,” “should,” “expect,”
“hope,” “anticipate,” “believe,” “intend,” “plan,” “estimate” and similar
expressions. These forward-looking statements are based on information currently
available to us and are subject to a number of risks, uncertainties and other
factors, including the factors set forth under “Risk Factors,” that could cause
our actual results, performance, prospects or opportunities in 2009 and beyond
to differ materially from those expressed in, or implied by, these
forward-looking statements. These factors include, without limitation, our need
for additional financing and the terms and conditions of any financing that is
consummated, customers’ acceptance of our new and existing products, the risk
that we will not be able to compete successfully, and the possible volatility of
our stock price and the potential fluctuation in our operating results. Although
we believe that the expectations reflected in these forward-looking statements
are reasonable and achievable, such statements involve significant risks and
uncertainties and no assurance can be given that the actual results will be
consistent with these forward-looking statements. You should read carefully the
factors described in the “Risk Factors” section of this prospectus for
information regarding risk factors that could affect our results. Except as
otherwise required by Federal securities laws, we undertake no obligation to
publicly update or revise any forward-looking statements, whether as a result of
new information, future events, changed circumstances or any other reason, after
the date of this prospectus.
USE
OF PROCEEDS
Unless we
specify another use in the applicable prospectus supplement, we will use the net
proceeds from the sale of the securities offered by us for general corporate
purposes, which may include working capital and/or capital
expenditures. We may also use such proceeds to fund strategic and
opportunistic acquisitions of businesses, technologies or product lines that
complement our current business. However, we currently have no
commitments or agreements for any specific acquisitions. We may set
forth additional information on the use of net proceeds from the sale of the
securities we offer under this prospectus in a prospectus supplement related to
a specific offering.
DESCRIPTION
OF SECURITIES
The
following is a summary of the rights of our common stock and preferred stock and
certain provisions of our Amended and Restated Certificate of Incorporation, as
amended (the “Charter”) and Amended and Restated Bylaws, as amended (the
“Bylaws”), as they will be in effect upon the completion of this
offering. For more detailed information, please see our Charter and
Bylaws.
Common
Stock
We may
issue shares of our common stock, from time to time. We are authorized to issue
180,000,000 shares of common stock. As of June 10, 2009, 12,178,565
shares of common stock are outstanding. Our common stock is traded on
the NASDAQ Capital Market under the symbol “WXCO.”
Voting.
Except as
otherwise required by law or as otherwise provided in any Preferred Stock
Designation, the holders of the common stock shall exclusively possess all
voting power and each share of common stock shall have one vote. Our
common stock does not have cumulative voting rights. Accordingly,
holders of a majority of the shares of common stock entitled to vote in any
election of directors may elect all of the directors standing for
election. An election of directors is determined by a plurality of
the votes cast by stockholders entitled to vote on the election. Our
Charter, provides that the Company may take action by written consent of a
majority of the stockholders entitled to vote with respect to the subject matter
of the action.
Dividends.
The
holders of our common stock shall be entitled to receive dividends, when, as and
if declared by the board of directors out of funds legally available for such
purpose and subject to any preferential dividend rights of any then outstanding
preferred stock.
Liquidation, Dissolution, Winding
Up
. After distribution in full of the preferential amount, if
any, to be distributed to holders of preferred stock in the event of voluntary
or involuntary liquidation, distribution or sale of assets, dissolution or
winding up of WHX, the holders of the common stock shall be entitled to receive
all the remaining assets of WHX, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of common stock held by them respectively.
Preemptive and Other
Rights
. Holders of our common stock do not have preemptive
rights, and they have no right to convert their common stock into any other
securities. If we issue shares of common stock under this prospectus,
the shares will be fully paid and non-assessable.
Transfer Restrictions.
Our Charter contains transfer restrictions to help preserve our net operating
loss carry forwards (“NOLs”) that will generally prevent any person from
acquiring 5% or more of our common stock for up to ten years after July 29,
2005, as specifically provided in our Charter. See the section of
this prospectus entitled “—Transfer Restrictions.”
Transfer Agent and
Registrar.
The transfer agent and registrar for our common
stock is Computershare Trust Company, N.A. The transfer agent’s
address is 250 Royall Street, Canton, MA 02021, and its telephone number is
(781) 575-2000.
Preferred
Stock
We may
issue shares of our preferred stock, from time to time, in one or more
series. We are authorized to issue 5,000,000 shares of preferred
stock. As of June 10, 2009, no shares of our preferred stock
were outstanding. For the complete terms of our preferred stock, please refer to
our Charter and Bylaws, which are incorporated by reference into the
registration statement of which this prospectus forms a part, as well as the
terms of the Charter for each series of preferred stock we may issue. The terms
of our preferred stock may also be affected by Delaware
law.
The board
of directors has the right, without the consent of holders of common stock, to
designate and issue one or more series of preferred stock. The number of
authorized shares of preferred stock may be increased (but not above the number
of authorized shares of the class) or decreased (but not below the number of
shares thereof then outstanding). Without limiting the generality of
the foregoing, the resolutions providing for issuance of any series of preferred
stock may provide that such series shall be superior or rank equally or junior
to the preferred stock of any other series to the extent permitted by
law. No vote of the holders of the preferred stock or common stock
shall be required in connection with the designation or the issuance of any
shares of any series of any preferred stock authorized by and complying with the
conditions of our Charter, the right to have such vote being expressly waived by
all present and future holders of the capital stock of WHX. A series
of preferred stock may bear rights superior to common stock as to voting,
dividends, redemption, distributions in liquidation, dissolution, or winding up,
and other relative rights and preferences fixed by our board of directors with
respect to each series, including the following terms:
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the
number of shares constituting the series and the distinctive designation
of the series;
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dividend
rates, whether dividends are cumulative, and, if so, from what date and
the relative rights of priority of payment of
dividends;
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voting
rights and the terms of the voting
rights;
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conversion
privileges and the terms and conditions of conversion, including provision
for adjustment of the conversion
rate;
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redemption
rights and the terms and conditions of redemption, including the date or
dates upon or after which shares may be redeemable, and the amount per
share payable in case of redemption, which may vary under different
conditions and at different redemption
dates;
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sinking
fund provisions for the redemption or purchase of
shares;
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rights
in the event of voluntary or involuntary liquidation, dissolution or
winding up of the corporation, and the relative rights of priority of
payment; and
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any
other relative powers, preferences, rights, privileges, qualifications,
limitations and restrictions of the
series.
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If we
issue preferred stock, we will fix the rights, preferences, privileges,
qualifications and restrictions of the preferred stock of each series that we
sell under this prospectus and applicable prospectus supplements in the
certificate of designation relating to that series. If we issue preferred stock,
we will incorporate by reference into the registration statement of which this
prospectus is a part the form of any certificate of designation that describes
the terms of the series of preferred stock we are offering before the issuance
of the related series of preferred stock. We urge you to read the prospectus
supplement related to any series of preferred stock we may offer, as well as the
complete certificate of designation that contains the terms of the applicable
series of preferred stock.
Warrants
We may
issue warrants to purchase our common stock, preferred stock, or debt
securities, from time to time. The following description, together
with the additional information we may include in any applicable prospectus
supplement, summarizes the material terms and provisions of the warrants that we
may offer under this prospectus and the related warrant agreements and warrant
certificates. We will describe in the applicable prospectus supplement the terms
of the series of warrants, including:
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the
offering price and aggregate number of warrants offered;
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if
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such
security;
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if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
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in
the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon
exercise;
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in
the case of warrants to purchase debt securities, the principal amount of
debt securities purchasable upon exercise of one warrant and the price at
which, and currency in which, this principal amount of debt securities may
be purchased upon exercise;
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the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreement and the
warrants;
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the
terms of any rights to redeem or call the
warrants;
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any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
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the
dates on which the right to exercise the warrants will commence and
expire;
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the
manner in which the warrant agreement and warrants may be
modified;
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federal
income tax consequences of holding or exercising the
warrants;
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the
terms of the securities issuable upon exercise of the warrants;
and
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any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise,
including:
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in
the case of warrants to purchase debt securities, the right to receive
payments of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
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in
the case of warrants to purchase common stock or preferred stock, the
right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if
any.
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While the
terms summarized above will apply generally to any warrants that we may offer,
if we issue warrants we will describe the particular terms of any series of
warrants in more detail in the applicable prospectus supplement. The terms of
any warrants offered under a prospectus supplement may differ from the terms
described above. Specific warrant agreements will contain additional important
terms and provisions and will be incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part, or as an exhibit to a
document filed under the Exchange Act. For more information on how
you can obtain copies of the applicable warrant agreements, when available, see
the section of this prospectus entitled “Where You Can Find Additional
Information.” We urge you to read the applicable warrant agreement
and any applicable prospectus supplement in their entirety if we offer
warrants.
Debt
Securities
We may
issue debt securities from time to time, in one or more series, as either senior
or subordinated debt or as senior or subordinated convertible
debt. The following description, together with the additional
information we include in any applicable prospectus supplement, summarizes the
material terms and provisions of the debt securities that we may offer under
this prospectus. While the terms we have summarized below will apply generally
to any future debt securities we may offer, we will describe the particular
terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities we offer under a
prospectus supplement may differ from the terms we describe below.
We will
describe in each prospectus supplement the following terms relating to a series
of debt securities:
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the
principal amount being offered, and if a series, the total amount
authorized and the total amount
outstanding;
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any
limit on the amount that may be
issued;
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whether
or not we will issue the series of debt securities in global form, and if
so, the terms and who the depository will
be;
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the
principal amount due at maturity, and whether the debt securities will be
issued with an original issue
discount;
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whether
and under what circumstances, if any, we will pay additional amounts on
any debt securities held by a person who is not a United States person for
tax purposes, and whether we can redeem the debt securities if we have to
pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest payment
dates or the method for determining such
dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of
any secured debt;
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the
terms of the subordination of any series of subordinated
debt;
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the
place where payments will be
payable;
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restrictions
on transfer, sale or other assignment, if
any;
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our
right, if any, to defer payment of interest and the maximum length of any
such deferral period;
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the
date, if any, after which the conditions upon which, and the price at
which, we may, at our option, redeem the series of debt securities
pursuant to any optional or provisional redemption provisions and the
terms of those redemptions
provisions;
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the
date, if any, on which, and the price at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt
securities and the currency or currency unit in which the debt securities
are payable;
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whether
the indenture will restrict our ability to pay dividends, or will require
us to maintain any asset ratios or
reserves;
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whether
we will be restricted from incurring any additional indebtedness, issuing
additional securities, or entering into a merger, consolidation or sale of
our business;
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a
discussion of any material or special United States federal income tax
considerations applicable to the debt
securities;
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information
describing any book-entry features;
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provisions
for a sinking fund purchase or other analogous fund, if
any;
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any
provisions for payment of additional amounts for taxes and any provision
for redemption, if we must pay such additional amount with respect to any
debt security;
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whether
the debt securities are to be offered at a price such that they will be
deemed to be offered at an “original issue discount” as defined in
paragraph (a) of Section 1273 of the Internal Revenue
Code;
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the
denominations in which we will issue the series of debt securities, if
other than denominations of $1,000 and any integral multiple
thereof;
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the
terms on which a series of debt securities may be convertible into or
exchangeable for our common stock, any other of our securities or
securities of a third party, and whether conversion or exchange is
mandatory, at the option of the holder or at our
option;
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whether
we and/or the debenture trustee may change an indenture without the
consent of any holders;
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the
form of debt security and how it may be exchanged and
transferred;
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descriptions
of the debenture trustee and paying agent, and the method of payments;
and
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any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any additional events of
default or covenants provided with respect to the debt securities, and any
terms which may be required by us or advisable under applicable laws or
regulations.
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Any debt
securities that we issue will be issued under an indenture, which is a contract
we will enter into with a trustee for the holders of the debt securities to be
named in the indenture. Any indenture will be qualified under the Trust
Indenture Act of 1939. If we offer debt securities, we will file a form of
indenture as an exhibit to the registration statement of which this prospectus
forms a part, or as an exhibit to a document filed under the Exchange Act. The
descriptions of the material terms and provisions of the debt securities and
indenture contained in this prospectus, and that we may include in any
prospectus supplement, are subject to, and are qualified in their entirety by
reference to, the provisions of any indenture applicable to a particular series
of debt securities. For more information on how you can obtain copies
of any applicable indenture, when available, see the section of this prospectus
entitled “Where You Can Find Additional Information.” We urge you to
read the applicable indenture and any applicable prospectus supplement in their
entirety if we offer debt securities.
Units
We may
issue Units comprised of one or more of the other securities described in this
prospectus in any combination, from time to time. Each unit will be
issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights and
obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time before a
specified date.
The
applicable prospectus supplement will describe:
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the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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any
unit agreement under which the units will be
issued;
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any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the units;
and
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whether
the units will be issued in fully registered or global
form.
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The
applicable prospectus supplement will describe the terms of any units that we
may offer. The preceding description and any description of units in the
applicable prospectus supplement does not purport to be complete and is subject
to and is qualified in its entirety by reference to the applicable unit
agreement and, if applicable, collateral arrangements and depositary
arrangements relating to such units. For more information on how you
can obtain copies of any applicable unit agreement and related documents, when
available, see the section of this prospectus entitled “Where You Can Find
Additional Information.” We urge you to read the applicable unit
agreement and any applicable prospectus supplement in their entirety if we offer
debt securities.
Transfer
Restrictions Applicable to our Capital Stock
Upon its
emergence from bankruptcy on July 29, 2005, WHX experienced an ownership change
as defined by Section 382 of the Internal Revenue Code, which imposes annual
limitations on the utilization of NOLs post ownership change. WHX
believes it qualifies for the bankruptcy exception to the general Section 382
limitations. Under this exception, the annual limitation imposed by
Section 382 resulting from an ownership change will not apply, instead the NOLs
must be reduced by certain interest expense paid creditors who became
stockholders as a result of the bankruptcy reorganization. In order
to avoid subsequent ownership changes to help preserve our NOLs, our Charter
contains transfer restrictions applicable to our capital stock, including our
common stock, preferred stock, warrants and other securities, that will
generally prevent any person from acquiring 5% or more of our common stock for
up to ten years after July 29, 2005, as specifically provided in our
Charter.
Anti-Takeover
Effects of Delaware Law and Our Charter and Bylaws
Certain
provisions of Delaware law, our Charter and our Bylaws to become effective upon
completion of this offering contain provisions that could have the effect of
delaying, deferring or discouraging another party from acquiring control of
us. These provisions, which are summarized below, are expected to
discourage certain types of coercive takeover practices and inadequate takeover
bids. These provisions are also designed, in part, to encourage
persons seeking to acquire control of us to first negotiate with our board of
directors. We believe that the benefits of increased protection of
our potential ability to negotiate with an unfriendly or unsolicited acquirer
outweigh the disadvantages of discouraging such proposals, including proposals
that are priced above the then-current market value of our common stock,
because, among other reasons, the negotiation of such proposals could result in
an improvement of their terms.
Charter
and Bylaws
Our
Charter and our Bylaws include provisions that:
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authorize
the board of directors to issue, without further action by the
stockholders, all or any shares of undesignated preferred
stock;
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establish
an advance notice procedure for stockholder approvals to be brought before
an annual meeting of our stockholders, including proposed nominations of
persons for election to the board of
directors;
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provide
that directors may be removed only for cause;
and
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provide
that vacancies on our board of directors may be filled only by a majority
of directors then in office, even though less than a
quorum.
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Delaware
Anti-Takeover Statute
We
are subject to the provisions of Section 203 of the Delaware General Corporation
Law regulating corporate takeovers. In general, Section 203 prohibits
a publicly-held Delaware corporation from engaging, under certain circumstances,
in a business combination with an interested stockholder for a period of three
years following the date the person became an interested stockholder
unless:
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prior
to the date of the transaction, the board of directors of the corporation
approved either the business combination or the transaction which resulted
in the stockholder becoming an interested
stockholder;
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upon
completion of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of
the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the voting
stock outstanding, but not the outstanding voting stock owned by the
interested stockholder, (1) shares owned by persons who are directors and
also officers and (2) shares owned by employee stock plans in which
employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer; or
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at
or subsequent to the date of the transaction, the business combination is
approved by the board of directors of the corporation and authorized at an
annual or special meeting of stockholders, and not by written consent, by
the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested
stockholder.
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Generally,
a business combination includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested
stockholder. An interested stockholder is a person who, together with
affiliates and associates, owns or, within three years prior to the
determination of interested stockholder status, did own 15% or more of a
corporation’s outstanding voting stock. We expect the existence of
this provision to have an anti-takeover effect with respect to transactions our
board of directors does not approve in advance. We also anticipate
that Section 203 may discourage business combinations or other attempts that
might result in a premium over the market price for the shares of common stock
held by our stockholders.
The
provisions of Delaware law, our Charter and our Bylaws to become effective upon
completion of this offering could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they may also inhibit
temporary fluctuations in the market price of our common stock that often result
from actual or rumored hostile takeover attempts. These provisions
may also have the effect of preventing changes in our management. It
is possible that these provisions could make it more difficult to accomplish
transactions that stockholders may otherwise deem to be in their best
interests.
PLAN
OF DISTRIBUTION
Pursuant
to General Instruction I.B.6 of Form S-3, we are permitted to use the
registration statement of which this prospectus forms a part to sell a maximum
amount of securities equal to one-third (33.33%) of the aggregate market value
of our outstanding, publicly held voting and non-voting common equity in any 12
month period. We may, from time to time, offer and sell the securities
registered hereby up to the lesser of this maximum amount or
$25,000,000.
We
may sell the securities offered by this prospectus in one or more of the
following ways from time to time:
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to
or through underwriters or dealers;
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directly
to purchasers, including our
affiliates;
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through
a block trade in which the broker or dealer engaged to handle the block
will attempt to sell the securities as agent, but may position and resell
a portion of the block as principal to facilitate the transaction;
or
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·
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through
a combination of any of these methods of
sale.
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We may
distribute the securities from time to time in one or more transactions at a
fixed price or prices, which may be changed from time to time, at market prices
prevailing at the time of sale, at prices related to prevailing market prices or
at negotiated prices. We may engage in “at the market” offerings of
our common stock. An “at the market” offering is an offering of our
common stock at other than a fixed price to or through a market
maker.
We
will set forth in a prospectus supplement the terms of the offering of our
securities, including some or all of the following:
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the
type and amount of securities we are
offering;
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the
purchase price of our securities being offered and the net proceeds we
will receive from the sale;
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the
method of distribution of the securities we are
offering;
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the
name or names of any agents, underwriters or
dealers;
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any
over-allotment options under which underwriters may purchase additional
securities from us;
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any
underwriting discounts and commissions or agency fees and commissions and
other items constituting underwriters’ or agents’
compensation;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchanges on which such securities may be
listed.
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Sale
Through Underwriters or Dealers
If
we use an underwriter or underwriters in the sale of securities offered by this
prospectus, the underwriters will acquire the securities for their own account,
including through underwriting, purchase, security lending or repurchase
agreements with us. The underwriters may resell the securities from time to time
in one or more transactions, including negotiated transactions. Underwriters may
sell the securities in order to facilitate transactions in any of our other
securities, including other public or private transactions and short sales.
Underwriters may offer the securities to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. Unless otherwise indicated in the
prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions, and the underwriters will be
obligated to purchase all the offered securities if they purchase any of
them. The underwriters may change from time to time any public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers.
If we use
an underwriter or underwriters in the sale of the securities, we will execute an
underwriting agreement with the underwriter or underwriters at the time we reach
an agreement for sale. We will set forth in the applicable prospectus supplement
the names of the specific managing underwriter or underwriters, as well as any
other underwriters, and the terms of the transactions, including compensation of
the underwriters and dealers. This compensation may be in the form of discounts,
concessions or commissions.
We
may grant to the underwriters options to purchase additional securities to cover
over-allotments, if any, at the public offering price with additional
underwriting discounts or commissions. If we grant any over-allotment option,
the terms of any over-allotment option will be set forth in the prospectus
supplement relating to those securities.
Sale
Through Dealers
If
we use dealers in the sale of securities offered by this prospectus, we or an
underwriter will sell the securities to them as principals. The dealers may then
resell the securities to the public at varying prices to be determined by the
dealers at the time of resale. The applicable prospectus supplement will set
forth the names of the dealers and the terms of the transactions.
Direct
Sales
We
may directly solicit offers to purchase securities offered by this prospectus.
In this case, no underwriters or agents would be involved. We may sell
securities directly to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any sale
of securities. The terms of any such sales will be described in the
prospectus supplement.
Sales
Through Agents
Securities
also may be offered and sold through agents designated from time to time. The
prospectus supplement will name any agent involved in the offer or sale of
securities and will describe any commissions payable to the agent. Unless
otherwise indicated in the applicable prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for the period of
its appointment. Any agent may be deemed to be an underwriter within
the meaning of the Securities Act with respect to any sale of
securities.
Delayed
Delivery Contracts
If
the applicable prospectus supplement indicates, we may authorize agents,
underwriters or dealers to solicit offers from institutions to purchase
securities at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on
a specified date in the future. Institutions with which contracts of this type
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, but in all
cases those institutions must be approved by us. The obligations of
any purchaser under any contract of this type will be subject to the condition
that the purchase of securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which the purchaser is
subject. The applicable prospectus supplement will describe the
commission payable for solicitation of those contracts.
Market
Making, Stabilization and Other Transactions
Our
common stock is listed on the NASDAQ Capital Market. Any common stock
sold pursuant to a prospectus supplement will be eligible for listing and
trading on the NASDAQ Capital Market, subject to official notice of issuance.
Unless the applicable prospectus supplement states otherwise, each other class
or series of securities issued will be a new issue and will have no established
trading market. We may elect to list any other class or series of securities on
an exchange, but we are not currently obligated to do so. Any underwriters that
we use in the sale of offered securities may make a market in such securities,
but may discontinue such market making at any time without notice. Therefore, we
cannot assure you that the securities will have a liquid trading
market.
Any
underwriter also may engage in stabilizing transactions, syndicate covering
transactions and penalty bids in accordance with Regulation M under the Exchange
Act. Stabilizing transactions involve bids to purchase the underlying
security in the open market for the purpose of pegging, fixing or maintaining
the price of the securities. Syndicate covering transactions involve
purchases of the securities in the open market after the distribution has been
completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a syndicate
member when the securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short positions.
Stabilizing transactions, syndicate covering transactions and penalty bids may
cause the price of the securities to be higher than it would be in the absence
of the transactions. The underwriters may, if they commence these transactions,
discontinue them at any time.
Derivative
Transactions and Hedging
The
underwriters or other agents may engage in derivative transactions involving the
securities. These derivatives may consist of short sale transactions and other
hedging activities. The underwriters or agents may acquire a long or short
position in the securities, hold or resell securities acquired and purchase
options or futures on the securities and other derivative instruments with
returns linked to or related to changes in the price of the securities. In order
to facilitate these derivative transactions, we may enter into security lending
or repurchase agreements with the underwriters or agents. The underwriters or
agents may effect the derivative transactions through sales of the securities to
the public, including short sales, or by lending the securities in order to
facilitate short sale transactions by others. The underwriters or agents also
may use the securities purchased or borrowed from us or others (or, in the case
of derivatives, securities received from us in settlement of those derivatives)
to directly or indirectly settle sales of the securities or close out any
related open borrowings of the securities.
General
Information
Agents,
underwriters, and dealers may be entitled, under agreements entered into with
us, to indemnification by us against specified liabilities, including
liabilities under the Securities Act, or to contribution by us to payments they
may be required to make in respect to such liabilities. The
applicable prospectus supplement will describe the terms and conditions of
indemnification or contribution. Some of our agents, underwriters, and dealers,
or their affiliates, may be customers of, engage in transactions with or perform
services for us, in the ordinary course of business. We will describe
in the prospectus supplement the nature of any such relationship and the name of
the parties involved. Any lockup arrangements will be set forth in
the applicable prospectus supplement.
LEGAL
MATTERS
Unless
otherwise specified in the applicable prospectus supplement, the validity of the
securities offered pursuant to this prospectus will be passed upon for us by
Olshan Grundman Frome Rosenzweig & Wolosky LLP, New York, New
York.
EXPERTS
The
consolidated financial statements and schedules incorporated by reference in
this prospectus and elsewhere in the registration statement have been
incorporated by reference in reliance upon the report of Grant Thornton LLP,
independent registered public accountants, upon the authority of said firm as
experts in accounting and auditing in giving said report.
INCORPORATION
OF INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” the documents that we file with the SEC.
This means that we can disclose important information to you by referring you to
those documents. Any information we incorporate in this manner is considered
part of this prospectus; however, to the extent that there are any
inconsistencies between information presented in this prospectus and information
contained in incorporated documents filed with the SEC before the date of this
prospectus, the information in this prospectus shall be deemed to supersede the
earlier information. Any information we file with the SEC after the date of this
prospectus will automatically update and supersede the information contained in
this prospectus.
We
incorporate by reference the documents listed below and any documents that we
subsequently file under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
prior to completion of the offering covered by this prospectus (excluding any
portion of such documents that have been “furnished” but not “filed” for the
purposes of the Exchange Act):
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2008,
filed with the SEC on March 31,
2009;
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Amendment
No. 1 to our Annual Report on Form 10-K/A for the fiscal year ended
December 31, 2008, filed with the SEC on April 27,
2009;
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our
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2009, filed with the SEC on May 15,
2009;
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our
Current Report on Form 8-K dated May 18, 2009, filed with the SEC on May
18, 2009;
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our
Current Report on Form 8-K dated May 8, 2009, filed with the SEC on May
14, 2009;
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our
Current Report on Form 8-K dated April 2, 2009, filed with the SEC on
April 3, 2009;
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our
Current Report on Form 8-K dated March 12, 2009, filed with the SEC on
March 16, 2009;
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our
Current Report on Form 8-K dated January 1, 2009, filed with the SEC on
January 7, 2009; and
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the
description of our common stock contained in our Registration Statement on
Form 8-A12B filed with the SEC on December 4,
2008.
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We will
provide without charge to each person, including any beneficial owner, to whom a
prospectus is delivered, a copy of any or all of the documents which are
incorporated by reference into this prospectus. Requests may be made orally or
in writing to the attention of: General Counsel, WHX Corporation, 1133
Westchester Avenue, White Plains, NY 10604 or (914) 461-1300.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and special reports, proxy statements, registration statements
and other information with the SEC. You may read and copy any materials we file
at the SEC’s Public Reference Room at 100 F St. NE, Washington, DC 20549. You
may obtain information on the operation of the Public Reference Room by calling
the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains
reports, proxy and information statements, and other information regarding
issuers that file electronically with the SEC. The address of that website is
http://www.sec.gov. You can find information about us on our website at
http://www.whxcorp.com. Information found on our website is not part of this
prospectus.
This
prospectus is part of a registration statement we filed with the SEC. You should
rely only on the information or representations contained in this prospectus and
any accompanying prospectus supplement. We have not authorized anyone to provide
information other than that provided in this prospectus and any accompanying
prospectus supplement. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this prospectus or any accompanying prospectus supplement is
accurate as of any date other than the date on the front of the
document.
PROSPECTUS
$25,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Units
This
Prospectus is dated June __, 2009
PART
II
Information
Not Required In Prospectus
Item
14. Other
Expenses of Issuance and Distribution.
The
following table sets forth the expenses incurred by WHX in connection with the
offering of the securities being registered. All of the amounts shown
are estimates except for the SEC registration fee.
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SEC
registration fees
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$
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1,395
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Legal
fees and expenses*
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25,000
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Accountants
fees and expenses*
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50,000
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Miscellaneous*
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15,000
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Total
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$
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91,395
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Item
15. Indemnification
of Directors and Officers.
Reference
is made to the provisions of Section 145 of the Delaware General Corporation Law
(the “DGCL”), which provides for indemnification of officers and directors in
certain transactions. Section 5.1 of our Bylaws and Article Eleventh
of our Charter provide for indemnification of directors and officers to the
fullest extent permitted by the DGCL.
Section
145 of the DGCL provides that a corporation may indemnify any person who was or
is a party or is threatened to be a party to any action, suit, or proceeding,
whether civil, criminal, administrative or investigative (other than a
proceeding by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is
serving at the request of the corporation. If such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe such person’s conduct
was unlawful. Indemnity obligations will only be authorized (i) by a
majority vote of directors who are not parties to such action, suit, or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by a majority vote of such directors, even though less than
a quorum, or (iii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iv) by the
stockholders.
The
rights conferred in the bylaws are not exclusive, and the registrant is
authorized to enter into indemnification agreements with its directors,
officers, employees and agents and to obtain insurance to indemnify such
persons. In addition to our indemnification obligations contained in
our Bylaws and Charter, we have entered into an employment agreement with each
of our officers providing for indemnification to the fullest extent permitted by
the DGCL.
Item
16. Exhibits.
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Exhibit
Number
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*1.1
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Underwriting
agreement, if any.
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2.1
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First
Amended Chapter 11 Plan of Reorganization of the Company, dated June 8,
2005 (incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K
filed July 28, 2005).
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2.2
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Third
Amended Joint Plan of Reorganization of Wheeling-Pittsburgh Steel
Corporation, dated May 19, 2003 (incorporated by reference to Exhibit 2.1
to Wheeling-Pittsburgh Corporation’s Registration Statement on Form 10
filed May 30, 2003).
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3.1
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Amended
and Restated Certificate of Incorporation of WHX (incorporated by
reference to Exhibit 3.1 to the Company’s Form 10-K, filed December 27,
2006).
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3.2
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Amendment
to Amended and Restated Certificate of Incorporation of WHX, dated
September 17, 2008 (incorporated by reference to Exhibit 3.2 to the
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission, File No. 333-154428, on October 17, 2008).
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3.3
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Amendment
to Amended and Restated Certificate of Incorporation of WHX, dated
November 24, 2008. (Incorporated by reference to Exhibit 3.3 to the
Company’s Annual Report on Form 10-K filed March 31,
2009).
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3.4
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Amended
and Restated By Laws of WHX (incorporated by reference to Exhibit 3.2 to
the Company’s Form 10-K, filed December 27, 2006).
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3.5
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Amendment
to Article Four, Section 4.1 of the Amended and Restated Bylaws of WHX
Corporation (incorporated by reference to Exhibit 3.4 to the Company’s
current report on Form 8-K, filed November 10, 2008).
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*4.1
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Form
of securities purchase agreement, if any.
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*4.2
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Certificate
of designation of preferred stock and, if any.
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*4.3
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Form
of specimen preferred stock certificate, if any.
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*4.4
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Form
of Warrant Agreement, if any.
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*4.5
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Form
of Warrant Certificate, if any.
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**4.6
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Form
of Debenture Indenture.
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*4.7
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Form
of Debt Security, if any.
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*4.8
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Form
of Unit Agreement, if any.
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*4.9
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Form
of Unit Certificate, if any.
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***5.1
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Opinion
of Olshan Grundman Frome Rosenzweig & Wolosky
LLP.
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**23.1
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Consent
of Independent Registered Accounting Firm-Grant Thornton
LLP.
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***23.2
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Consent
of Olshan Grundman Frome Rosenzweig & Wolosky LLP (contained in
Exhibit 5.1).
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***24.1
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Power
of Attorney (included in the signature page to the Registration Statement
on Form S-3 filed on April 24, 2009).
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†25.1
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Statement
of Eligibility of Trustee for Indenture under Trust Indenture Act of
1939.
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*
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To
be filed by an amendment to the registration statement or as an exhibit to
a document filed under the Exchange Act and incorporated herein by
reference.
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***
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Previously
filed with the Company’s Registration Statement on Form S-3 on April 24,
2009.
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†
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To
be incorporated by reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of
1939.
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ITEM
17. Undertakings
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by section 10(a)(3) of the Securities
Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective
registration statement.
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(iii)
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To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
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Provided,
however, that: Paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the SEC
by the registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
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(i)
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If
the registrant is relying on Rule
430B:
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(A)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
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(B)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference in to the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective date;
or
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(ii)
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If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used
after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to
such date of first use.
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(5) That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
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(iv)
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Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
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The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h)under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(2)
For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection(a) of
section 310 of the Trust Indenture Act of 1939 (“Act”) in accordance with the
rules and regulations prescribed by the SEC under section 305(b)(2) of the
Act.
SIGNATURES
In
accordance with the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
of filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in White
Plains, New York, on
June 12,
2009
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WHX
CORPORATION
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By:
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/s/
Glen
M. Kassan
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Name:
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Glen
M. Kassan
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Title:
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Chief
Executive Officer
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Pursuant
to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates
indicated.
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By:
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*
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Warren
G. Lichtenstein, Chairman of the Board
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Date
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By:
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/s/
Glen
M. Kassan
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Glen
M. Kassan, Director and Chief Executive
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Date
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Officer
(Principal Executive Officer)
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By:
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/s/
James F. McCabe, Jr.
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James
F. McCabe, Jr., Chief Financial Officer
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Date
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(Principal
Accounting Officer)
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By:
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*
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John
H. McNamara, Jr., Director
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Date
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By:
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*
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John
J. Quicke, Director
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Date
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By:
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*
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Louis
Klein, Jr., Director
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Date
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By:
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*
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Jack
L. Howard, Director
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Date
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By:
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*
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Robert
Frankfurt, Director
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Date
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By:
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*
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Garen
W. Smith, Director
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Date
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*By:
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/s/
Glen
M. Kassan
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Glen
M. Kassan
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Attorney-in-fact
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Exhibit
Index
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Exhibit
Number
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*1.1
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Underwriting
agreement, if any.
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2.1
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First
Amended Chapter 11 Plan of Reorganization of the Company, dated June 8,
2005 (incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K
filed July 28, 2005).
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2.2
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Third
Amended Joint Plan of Reorganization of Wheeling-Pittsburgh Steel
Corporation, dated May 19, 2003 (incorporated by reference to Exhibit 2.1
to Wheeling-Pittsburgh Corporation’s Registration Statement on Form 10
filed May 30, 2003).
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3.1
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Amended
and Restated Certificate of Incorporation of WHX (incorporated by
reference to Exhibit 3.1 to the Company’s Form 10-K, filed December 27,
2006).
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3.2
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Amendment
to Amended and Restated Certificate of Incorporation of WHX, dated
September 17, 2008 (incorporated by reference to Exhibit 3.2 to the
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission, File No. 333-154428, on October 17, 2008).
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3.3
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Amendment
to Amended and Restated Certificate of Incorporation of WHX, dated
November 24, 2008. (Incorporated by reference to Exhibit 3.3 to the
Company’s Annual Report on Form 10-K filed March 31,
2009).
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3.4
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Amended
and Restated By Laws of WHX (incorporated by reference to Exhibit 3.2 to
the Company’s Form 10-K, filed December 27, 2006).
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3.5
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Amendment
to Article Four, Section 4.1 of the Amended and Restated Bylaws of WHX
Corporation (incorporated by reference to Exhibit 3.4 to the Company’s
current report on Form 8-K, filed November 10, 2008).
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*4.1
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Form
of securities purchase agreement, if any.
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*4.2
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Certificate
of designation of preferred stock and, if any.
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*4.3
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Form
of specimen preferred stock certificate, if any.
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*4.4
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Form
of Warrant Agreement, if any.
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*4.5
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Form
of Warrant Certificate, if any.
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**4.6
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Form
of Debenture Indenture.
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*4.7
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Form
of Debt Security, if any.
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*4.8
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Form
of Unit Agreement, if any.
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*4.9
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Form
of Unit Certificate, if any.
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***5.1
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Opinion
of Olshan Grundman Frome Rosenzweig & Wolosky
LLP.
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**23.1
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Consent
of Independent Registered Accounting Firm-Grant Thornton
LLP.
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***23.2
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Consent
of Olshan Grundman Frome Rosenzweig & Wolosky LLP (contained in
Exhibit 5.1).
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***24.1
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Power
of Attorney (included in the signature page to the Registration Statement
on Form S-3 filed on April 24, 2009).
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†25.1
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Statement
of Eligibility of Trustee for Indenture under Trust Indenture Act of
1939.
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|
*
|
To
be filed by an amendment to the registration statement or as an exhibit to
a document filed under the Exchange Act and incorporated herein by
reference.
|
|
***
|
Previously
filed with the Company’s Registration Statement on Form S-3 on April 24,
2009.
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|
†
|
To
be incorporated by reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of
1939.
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