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EXHIBIT 4.1
SERIES A WARRANT AGREEMENT
SERIES A WARRANT AGREEMENT, dated as of June 29, 2001 (this
"Agreement"), is by and among METAL MANAGEMENT, INC., a Delaware corporation
(the "Company"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, as Warrant Agent (the "Warrant Agent").
WHEREAS, in connection with the Plan, the Company has agreed to issue
certain warrants (the "Warrants") evidenced by the Warrant Certificates in the
form of Exhibit A hereto to purchase shares of the Company's Common Stock, par
value $.01 per share (the "Common Stock"), at an exercise price per share
determined in accordance with the Plan (the "Exercise Price") from the Original
Issuance Date until June 29, 2006 (the "Exercise Period"), pursuant to the terms
of such Warrants;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Series A Warrant Certificates (together with any certificates issued
in replacement or substitution therefor, the "Warrant Certificates") to the
registered holders (the "Holders") and other matters as provided herein;
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
Section 2. Registration. The Company and the Warrant Agent shall
register each Warrant upon records to be maintained by the Company and the
Warrant Agent for that purpose in the name of the record holder of such Warrant
from time to time. The Company and the Warrant Agent may deem and treat the
registered Holder of each Warrant as the absolute owner thereof for the purpose
of any exercise thereof, any distribution to the Holder thereof and for all
other purposes.
Section 3. Transfers and Exchanges of Warrants and Warrant Shares.
(a) Registration of Transfers and Exchanges. The Company and the
Warrant Agent shall register the transfer of any Warrants upon records to be
maintained by the Company and the Warrant Agent for that purpose upon surrender
of a Warrant Certificate, with the Form of Assignment attached thereto
appropriately completed and duly signed, to the Company or the Warrant Agent at
the office specified in or pursuant to Section 4(c). Upon any such registration
of transfer, a new Warrant Certificate, in substantially the form of Exhibit A
hereto, evidencing the Warrants so transferred shall be issued to the transferee
and a new Warrant Certificate, in
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similar form, evidencing the remaining Warrants not so transferred, if any,
shall be issued to the then registered Holder thereof.
(b) Warrants Exchangeable for Different Denominations. Each
Warrant Certificate is exchangeable, upon the surrender thereof by the Holder
thereof at the office of the Company or the Warrant Agent specified in or
pursuant to Section 4(c), for new Warrant Certificates, in substantially the
form of Exhibit A hereto, evidencing in the aggregate the right to purchase the
number of Warrant Shares which may then be purchased thereunder, each of such
new Warrant Certificates to be dated the date of such exchange and to represent
the right to purchase such number of Warrant Shares as shall be designated by
said Holder thereof at the time of such surrender.
Section 4. Duration and Exercise of Warrants.
(a) Exercise. Each Warrant shall be exercisable by the registered
Holder thereof on any business day during the Exercise Period; provided,
however, the minimum number of Warrant Shares issuable upon the exercise of a
Warrant shall be equal to the lesser of (i) 100 Warrant Shares or (ii) if such
Holder's Warrant is exercisable for less than 100 Warrant Shares, all of the
Warrant Shares evidenced by such Holder's Warrant.
(b) Ratio. Subject to the provisions of the Warrant Certificates
and this Agreement, including adjustments to the number of Warrant Shares
issuable on the exercise of each Warrant and to the Exercise Price pursuant to
Section 8, the Holder of each Warrant during the Exercise Period shall have the
right to purchase from the Company (and the Company shall be obligated to issue
and sell to such holder of a Warrant) at the Exercise Price one fully paid
Warrant Share which is non-assessable.
(c) Payment of Exercise Price. Subject to Sections 5, 9 and 11,
upon surrender of each Warrant Certificate, with the Form of Election to
Purchase attached thereto duly filled in and signed, to the Company at its
office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer, to the Warrant Agent at its office at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
Xxxxxx, Assistant Vice President, or at such other address as the Company or the
Warrant Agent may specify in writing to the then registered holder of the
Warrants, and upon payment of the Exercise Price multiplied by the number of
Warrant Shares then issuable upon exercise of the Warrants being exercised in
lawful money of the United States of America, the Company or the Warrant Agent
shall promptly issue and cause to be delivered to or upon the written order of
the registered Holder of such Warrants, and in such name or names as such
registered Holder may designate, one or more certificates for the Warrant Shares
issued upon such exercise of such Warrants. Any Person so designated to be named
therein shall be deemed to have become Holder of record of such Warrant Shares
as of the Date of Exercise of such Warrants.
The "Date of Exercise" of any Warrant means the date on which the
Company or the Warrant Agent shall have received (i) the Warrant Certificate
representing such Warrants, with
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the Form of Election to Purchase attached thereto appropriately completed and
duly signed, and (ii) payment of the Exercise Price for such Warrant.
(d) Partial Exercise. The Warrants evidenced by each Warrant
Certificate shall be exercisable, either as an entirety or, from time to time,
for part only of the number of Warrants evidenced by such Warrant Certificate.
If less than all of the Warrants evidenced by any Warrant Certificate are
exercised at any time, the Company or the Warrant Agent shall issue, at its
expense, to the relevant Holder, a new Warrant Certificate, in substantially the
form of the surrendered Warrant Certificate, for the remaining number of
Warrants evidenced by such Warrant Certificate.
Section 5. Payment of Taxes. The Company will pay all transfer and
stock issuance taxes attributable to the issuance of the Warrants and the
Warrant Shares; provided, however, that the Company shall not be required to pay
any tax in respect of the transfer of Warrants, or the issuance or delivery of
certificates for Warrant Shares or other securities in respect of the Warrant
Shares upon the exercise of Warrants, to a Person other than a then existing
registered Holder of Warrants or an Affiliate of such registered Holder.
Section 6. Mutilated or Missing Warrant Certificate. If a Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company or the
Warrant Agent will, upon request by the registered Holder of such Warrant
Certificate, issue to such Holder, in exchange for and upon cancellation of the
mutilated Warrant Certificate, or in substitution for the lost, stolen or
destroyed Warrant Certificate, a new Warrant Certificate, in substantially the
form of the replaced Warrant Certificate, of like tenor and representing the
equivalent number of Warrants, but, in the case of loss, theft or destruction,
only upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction of the Warrant Certificate and, if requested by the Company, a
written agreement of indemnity from the Holder satisfactory to the Company.
Section 7. Reservation, Listing and Issuance of Warrant Shares.
(a) Available Warrant Shares. The Company will at all times have
authorized, and reserve and keep available, free from preemptive rights, for the
purpose of enabling it to satisfy any obligation to issue Warrant Shares upon
the exercise of the Warrants, the number of Warrant Shares issuable upon
exercise of all Warrants covered by this Agreement.
(b) Adjustments Below Par. Before taking any action which could
cause an adjustment pursuant to Section 8 reducing the Exercise Price below the
then par value (if any) of the Warrant Shares, the Company will take any
corporate action which may be necessary in order that the Company may validly
and legally issue at the Exercise Price as so adjusted Warrant Shares that are
fully paid and non-assessable.
(c) Warrant Shares Duly Authorized. The Company covenants that
all Warrant Shares will, upon issuance in accordance with the terms of this
Agreement, be (i) duly authorized, fully paid and non-assessable, and (ii) free
from all taxes with respect to the issuance thereof and from all adverse claims,
liens, charges and security interests created by the Company.
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Section 8. Adjustments of Price and Number of Warrant Shares.
(a) Adjustment of Number of Warrant Shares Issuable. Upon each
adjustment of the Exercise Price pursuant to this Section 8, the Holder of a
Warrant shall be entitled to purchase, at the Exercise Price in effect after
such adjustment, a number of Warrant Shares equal to the amount obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares issuable upon exercise of such Warrant immediately
prior to such adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(b) Adjustment of Price upon Issuance of Common Stock. If and
whenever after the date hereof, the Company shall issue or sell any shares of
Common Stock for a consideration per share less than 95% of the Market Price (as
hereinafter defined) at the time of such issue or sale, then forthwith upon such
issue or sale, the Exercise Price shall be reduced to the price determined as
follows: by multiplying the then existing Exercise Price by a fraction (A) the
numerator of which shall be the number of shares of Common Stock Deemed
Outstanding immediately prior to such issue or sale plus the number of shares of
Common Stock which the aggregate offering price of the total number of shares of
Common Stock so to be offered would purchase at the then current Market Price
(or 95% of the then current Market Price if the issue or sale is pursuant to a
private placement and no underwriter is involved) and (b) the denominator of
which shall be the number of shares of Common Stock Deemed Outstanding plus the
number of additional shares of Common Stock to be offered for issue or sale.
(c) Additional Adjustments. For the purposes of subsection (b) of
this Section, the following clauses shall also be applicable:
(i) Issuance of Rights or Options. If at any time the
Company shall grant (whether directly or by assumption in a merger in which the
Company is the surviving Company or otherwise) any rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or any stock or
securities convertible into or exchangeable for Common Stock (such convertible
or exchangeable stock or securities being herein called "Convertible
Securities") whether or not such rights or options or the right to convert or
exchange any such Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon the exercise of such
rights or options or upon conversion or exchange of such Convertible Securities
(determined as provided below) shall be less than 95% of the Market Price in
effect immediately prior to the time of the granting of such rights or options,
then the total maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or upon conversion or exchange of the total
maximum amount of such Convertible Securities issuable upon the exercise of such
rights or options shall (as of the date of granting of such rights or options)
be deemed to have been issued for such price per share, and the Exercise Price
shall be adjusted in accordance with Section 8(b). Except as provided in clause
(iii) of this subsection, no further adjustments of any Exercise Price shall be
made upon the actual issue of
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such Common Stock or of such Convertible Securities upon exercise of such rights
or options or upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities. For the purposes of this clause (i),
the price per share for which Common Stock is issuable upon the exercise of any
such rights or options or upon conversion or exchange of any such Convertible
Securities shall be determined by dividing (A) the total amount, if any,
received or receivable by the Company as consideration for the granting of such
rights or options, plus the minimum aggregate amount of additional consideration
payable to the Company upon the exercise of all such rights or options, plus, in
the case of such rights or options which relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if any, payable upon the
issue or sale of such Convertible Securities and upon the conversion or exchange
thereof, by (B) the total maximum number of shares of Common Stock issuable upon
the exercise of such rights or options or upon conversion or exchange of all
such Convertible Securities issuable upon the exercise of such rights or
options.
(ii) Issuance of Convertible Securities. If the Company
shall issue (whether directly or by assumption in a merger in which the Company
is the surviving corporation or otherwise) or sell any Convertible Security,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable upon
conversion or exchange of such Convertible Securities (determined as provided
below) shall be less than 95% of the Market Price in effect immediately prior to
the time of such issue or sale, then the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such Convertible
Securities shall (as of the date of the issue or sale of such Convertible
Securities) be deemed to have been issued for such price per share, and the
Exercise Price shall be adjusted in accordance with Section 8(b), provided that
(A) except as provided in clause (iii) of this subsection, no further
adjustments of any Exercise Price shall be made upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Securities, and (B)
if any such issue or sale of such Convertible Securities is made upon exercise
of any rights to subscribe for or to purchase or any option to purchase any such
Convertible Securities for which adjustments of any Exercise Price have been or
are to be made pursuant to other provisions of this subsection (c), no further
adjustment of any Exercise Price shall be made by reason of such issue or sale.
For the purposes of this clause (ii), the price per share for which Common Stock
is issuable upon conversion or exchange of Convertible Securities shall be
determined by dividing (C) the total amount, if any, received or receivable by
the Company as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by (D) the
total maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities.
(iii) Readjustments. If the purchase price provided for in
any rights or options referred to in clause (i) above, or the additional
consideration, if any, payable upon the conversion or exchange of Convertible
Securities referred to in clause (i) or (ii) above, or the rate at which any
Convertible Securities referred to in clause (i) or (ii) above are convertible
into or exchangeable for Common Stock, shall be reduced, then the Exercise Price
in effect at the time of such event shall forthwith be readjusted to the
Exercise Price which would have been in effect at
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such time had such rights, options or Convertible Securities then outstanding
provided for such reduced purchase price, additional consideration or conversion
rate, as the case may be, at the time initially granted, issued or sold. On the
expiration of any such option or right or the termination of any such right to
convert or exchange such Convertible Securities, the Exercise Price and number
of Warrant Shares issuable pursuant hereto then in effect shall be readjusted to
the Exercise Price and number of Warrant Shares which would have been in effect
at the time of such expiration or termination had such warrant, right, option or
Convertible Security never been issued, and the shares of Common Stock issuable
thereunder shall no longer be Common Stock Deemed Outstanding.
(iv) Consideration for Stock. If any shares of Common Stock
or Convertible Securities or any rights or options to purchase any such Common
Stock or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. If any shares of Common Stock or Convertible Securities or
any rights or options to purchase any such Common Stock or Convertible
Securities shall be issued or sold for a consideration other than cash, the
amount of the consideration other than cash received by the Company shall be
deemed to be the fair value of such consideration as determined reasonably and
in good faith by the board of directors of the Company, without deduction of any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Company in connection therewith. If the Company shall declare or pay a
dividend or make any other distribution upon any stock of the Company payable in
Common Stock, Convertible Securities or options, warrants or rights to purchase
Common Stock or Convertible Securities, the securities issuable in payment of
such dividend or distribution shall be deemed to have been issued or sold
without consideration. If any shares of Common Stock or Convertible Securities
or any rights or options to purchase such shares of Common Stock or Convertible
Securities shall be issued in connection with any merger or consolidation in
which the Company is the surviving corporation (other than any consolidation or
merger in which the previously outstanding shares of Common Stock of the Company
shall be changed into or exchanged for the stock or other securities of another
corporation), the amount of consideration therefor shall be deemed to be the
fair value as determined reasonably and in good faith by the board of directors
of the Company or such portion of the assets and business of the non-surviving
corporation as such board may reasonably and in good faith determine to be
attributable to such shares of Common Stock, Convertible Securities, rights or
options, as the case may be. In the event of any consolidation or merger of the
Company in which the Company is not the surviving corporation or in which the
previously outstanding shares of Common Stock of the Company shall be changed
into or exchanged for the stock or other securities of another entity or in the
event of any sale of all or substantially all of the assets of the Company for
stock or other securities of any entity, the Company shall be deemed to have
issued a number of shares of its Common Stock for stock or securities or other
property of such entity computed on the basis of the actual exchange ratio on
which the transaction was predicated and for a consideration equal to the fair
market value on the date of such transaction of all such stock or securities or
other property of such entity, and if any such calculation results in adjustment
of the Exercise Price in accordance with Section 8(b),
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the determination of the number of shares of Common Stock issuable upon exercise
of the Warrants immediately prior to such merger, consolidation or sale, for
purposes of Section 8(e), shall be made after giving effect to such adjustment
of the Exercise Price.
(v) Record Date. If the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock or in Convertible
Securities or (B) to rights to subscribe for or to purchase, or any options for
the purchase of, Common Stock or Convertible Securities, then such record date
shall be deemed to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution or the date of the granting of such
right, as the case may be.
(vi) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock for the purposes of this Section 8.
(d) Subdivision or Combination of Stock. If the Company shall at
any time subdivide (whether by stock split, stock dividend, recapitalization or
otherwise) the outstanding shares of Common Stock into a greater number of
shares or pay a dividend or make a distribution to holders of Common Stock in
the form of Common Stock, the Exercise Price in effect immediately prior to such
subdivision, payment or distribution shall be proportionately reduced;
conversely, if the outstanding shares of Common Stock shall be combined into a
smaller number of shares (whether by reverse stock split or otherwise), the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased.
(e) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. If the Company (i) consolidates with or merges into any
other entity and is not the continuing or surviving corporation of such
consolidation or merger, or (ii) permits any other entity to consolidate with or
merge into the Company and the Company is the continuing or surviving
corporation but, in connection with such consolidation or merger, the Common
Stock is changed into or exchanged for stock or other securities of any other
corporation or cash or any other assets, or (iii) transfers all or substantially
all of its properties and assets to any other entity, or (iv) effects a
recapitalization, capital reorganization or reclassification of the capital
stock of the Company in such a way that holders of Common Stock shall be
entitled to receive stock, securities, cash or assets with respect to or in
exchange for Common Stock (each of the transactions referred to in the foregoing
clauses (i) through (iv) being an "Organic Change"), then, and in each such
case, proper provision shall be made in form and substance reasonably
satisfactory to the Holders so that, upon the basis and upon the terms and in
the manner provided in this subsection (e), the holder of each Warrant
Certificate, upon the exercise of each Warrant at any time after the
consummation of such Organic Change, shall be entitled to receive (at the
aggregate Exercise Price in effect for all Warrant Shares issuable upon such
exercise immediately prior to such consummation as adjusted to the time of such
transaction), in lieu of shares of Common Stock issuable upon such exercise
prior to such consummation, the stock and other securities, cash and assets to
which such holder would have been entitled upon such
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consummation if such holder had so exercised such Warrant immediately prior
thereto (subject to adjustments subsequent to such corporate action as nearly
equivalent as possible to the adjustments provided for in this Section 8).
(f) Notice of Adjustment. Upon any adjustment of any Exercise
Price, then and in each such case the Company or the Warrant Agent shall
promptly deliver a notice to the registered holder of the Warrants, which notice
shall state the Market Price, if any adjustment depends upon a determination of
Market Price, and the Exercise Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of each Warrant, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
(g) Other Notices. In case at any time:
(i) the Company shall declare any cash dividend on its
Common Stock;
(ii) the Company shall pay any dividend payable in stock
upon its Common Stock or make any distribution (other than regular cash
dividends) to the holders of its Common Stock;
(iii) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any class or
other rights;
(iv) the Company shall authorize to all holders of its
Common Stock the distribution of evidence of its indebtedness or assets (other
than cash dividends or cash distributions payable out of earnings or earned
surplus or dividends payable in Common Stock);
(v) there shall be any Organic Change;
(vi) there shall be a voluntary or involuntary dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors, or winding up
of the Company; or
(vii) the Company proposes to take any other action or an
event occurs which would require an adjustment of the Exercise Price pursuant to
subsection (i) of this Section 8;
then, in any one or more of said cases, the Company or the Warrant Agent shall
give written notice, addressed to the holder of each Warrant Certificate at the
address of such holder as shown on the books of the Company, of (1) the date on
which the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights, or (2) the date (or, if not then
known, a reasonable approximation thereof by the Company) on which such Organic
Change or other action or event, as the case may be, shall take place (or, in
the case of clause (vi) above, the date on which the relevant action or event
took place). Such notice shall also specify (or, if not then known, reasonably
approximate) the date as of which the holders of Common
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Stock of record shall participate in such dividends, distribution or
subscription rights, or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such Organic Change, dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors, winding up, or
other action or event, as the case may be. Such written notice shall be given at
least twenty days prior to the action in question and not less than twenty days
prior to the record date or the date on which the Company's transfer books are
closed in respect thereto; provided, that no advance notice need be given of any
event or action specified in clause (vi) above, but the Company or the Warrant
Agent shall give notice of such event as promptly thereafter as practicable.
(h) Certain Exceptions to Antidilution Protection.
Notwithstanding anything to the contrary in this Section 8, there shall be no
adjustment to the Exercise Price or to the number of Warrant Shares issuable
upon exercise of the Warrants: (i) upon any exercise of the Other Warrants in
accordance with the terms thereof in effect on the Original Issuance Date and
all warrants issued upon the partial exercise, transfer or division of, or in
substitution for, any such warrants, or any adjustment to the number of shares
issuable under the Other Warrants pursuant to the terms thereof as in effect on
the Original Issuance Date; (ii) upon the sale or issuance of Common Stock
pursuant to any employee discount stock purchase plan or stock option plan
adopted by the Company from time to time and approved by the Company's
shareholders; or (iii) upon the issuance of any other securities as contemplated
by the Plan, including the new Common Stock (as described therein).
(i) Other Securities. If at any time, as a result of an
adjustment made pursuant to this Section 8, any holder of Warrants shall become
entitled to purchase any securities of the Company other than shares of Common
Stock, the number or amount of such other securities so purchasable and the
consideration for such securities shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions contained in this Section 8 hereof.
Section 9. No Stock Rights. No holder of any Warrant Certificate, as
such, shall be entitled to vote or be deemed the holder of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise thereof, nor shall anything contained herein be construed to confer
upon the Holder of any Warrant Certificate, as such, the rights of a stockholder
of the Company or the right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or give or withhold
consent to any corporate action or to receive notice of meetings or other
actions affecting stockholders (except as provided herein), or to receive
dividends (except as provided herein) or subscription rights or otherwise, until
the Date of Exercise of the Warrants shall have occurred.
Section 10. Fractional Shares. The Company shall not be required to
issue fractional shares of its Common Stock upon exercise of any Warrant or to
distribute certificates which evidence fractional shares of its Common Stock. As
to any fractional share of Common Stock which the Holder would otherwise be
entitled to subscribe for from the Company upon such exercise, the Company shall
purchase from the Holder such unissued fractional share at a price equal to an
amount calculated by multiplying such fractional share (calculated to the
nearest
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1/100th of a share) by the then-Market Price determined in accordance
with the terms of this Agreement. Payment of such amount shall be made in cash
or by check payable to the order of the Holder at the time of delivery of any
certificate or certificates arising upon such exercise.
Section 11. No Registration under Securities Act. Neither the Warrants
nor the Warrant Shares have been registered under the Securities Act, but they
have been issued pursuant to a valid exemption from the Securities Act pursuant
to Section 1145 of the Bankruptcy Code.
Section 12. Certain Definitions. The following terms have the meanings
set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such Person.
"Plan" shall mean the First Amended Joint Plan of
Reorganization of Metal Management, Inc. and its subsidiary debtors as filed
with and approved by the United States Bankruptcy Court for the District of
Delaware.
"Common Stock" is defined in the second paragraph hereof.
"Common Stock Deemed Outstanding" means, at any given time,
(x) the number of shares of Common Stock actually outstanding at such time, plus
(y) the number of shares of Common Stock issuable pursuant to any outstanding
Convertible Securities, or rights or options to purchase Common Stock or
Convertible Securities but only to the extent such Convertible Securities,
rights or options are In the Money at such time.
"Company" is defined in the first paragraph hereof.
"Convertible Securities" is defined in Section 8(c)(i).
"Date of Exercise" is defined in Section 4(c).
"Exercise Period" is defined in the second paragraph hereof.
"Exercise Price" is defined in the second paragraph hereof.
"Holder" is defined in the first paragraph hereof.
"In the Money" means, as to any Convertible Securities or
rights or options to purchase Common Stock or Convertible Securities at any
time, that such Convertible Securities, rights or options have a conversion
price, exercise price or similar price per share of Common Stock that is less
than the Market Price as of the date of determination.
"Management Equity Incentive Plan" shall mean that certain
management equity incentive plan to be entered into on the Original Issuance
Date.
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"Market Price" shall mean the average of the daily closing
prices per share of the Common Stock for the ten consecutive trading days
immediately preceding the day as of which "Market Price" is being determined
(exclusive of "ex-dividend" and similar dates) provided, however, that (i)
Market Price shall be the closing price per share of the Common Stock of the
Company on the date of issuance with respect to the issuance of options to
purchase Common Stock of the Company issued to directors, officers or employees
of the Company and (ii) Market Price shall be the closing price per share of the
Common Stock of the Company on the date the underwriting agreement is executed
with respect to any bona fide underwritten public offering of the Common Stock
of the Company involving net cash proceeds to the Company of at least
$1,000,000. The closing price for each day shall be the last sale price regular
way or, in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, in either case on the principal national
securities exchange on which the shares are listed or admitted to trading, or if
the shares are not so listed or admitted to trading, on the National Market
System or SmallCap System of NASDAQ or, if prices for the shares are not quoted
on such National Market System, the average of the highest reported bid and
lowest reported asked prices as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or through a similar organization if
NASDAQ is no longer reporting such information. If shares of the Common Stock
are not listed or admitted to trading on any exchange or quoted through NASDAQ
or any similar organization, the "Market Price" shall be deemed to be the fair
value thereof determined in good faith by a nationally recognized independent
investment banking firm selected by the Company as of a date which is within 30
days of the date as of which the determination is to be made (the fees and
expenses of such independent certified public accountants and independent
investment banking firm to be paid by the Company).
Anything herein to the contrary notwithstanding, if the Company shall
issue any shares of Common Stock or Convertible Securities or rights or options
to purchase Common Stock or Convertible Securities in connection with the
acquisition by the Company of the stock or assets of any other corporation or
the merger of any other corporation into the Company, the Market Price shall be
determined in the manner described in this definition as of the date the number
of shares of Common Stock, Convertible Securities (or in the case of Convertible
Securities other than stock, the aggregate principal amount of Convertible
Securities), rights or options was determined (as set forth in a written
agreement between the Company and the other party to the transaction) rather
than on the date of issuance of such shares of Common Stock, Convertible
Securities, rights or options.
"Organic Change" is defined in Section 8(e).
"Original Issuance Date" means June 29, 2001.
"Other Warrants" shall mean (i) the Series B Warrants to
purchase 1,000,000 shares at an exercise price of $6.50 per share, and (ii) the
Series C Warrants to purchase 500,000 shares at an exercise price of $12.00 per
share, in each case as issued pursuant to the Management Equity Incentive Plan
and as contemplated by the Plan.
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"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant" is defined in the second paragraph hereof.
"Warrant Agent is defined in the first paragraph hereof.
"Warrant Certificate" is defined in the third paragraph
hereof.
"Warrant Share" means the Common Stock issuable upon the
exercise of the Warrants.
Section 13. Miscellaneous.
(a) Governing Law. This Agreement shall be governed in all
respects by the internal laws of the State of Delaware.
(b) Entire Agreement. This Agreement, together with the
Warrant Certificates, constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter hereof.
(c) Amendment. The Company and the Warrant Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Warrant Certificates in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary or desirable and which shall not adversely affect the
interests of the holders of the Warrant Certificates.
(d) Notices, etc. Each notice, demand, request, request for
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required or desired
to be given or made under this Agreement shall be in writing (except as
otherwise provided in this Agreement), and shall be effective and deemed to have
been received when delivered in person, when sent by fax with receipt
acknowledged, five (5) days after having been mailed by certified or registered
United States mail, postage prepaid, return receipt requested, or the next
business day after having been sent by a nationally recognized overnight mail or
courier service, receipt requested. Notices shall be addressed as follows: (x)
if to any Holder, at such address or fax number as such Participant shall have
furnished the Company in writing, or (y) if to the Company, at the address or
fax number of its principal executive offices set forth below its signature
hereon or at such other address or fax number as the Company shall have
furnished to the Holder. Any notice or other communication required to
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be given hereunder to a Holder in connection with a registration may instead be
given to the designated representative of such Holder.
(e) Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by fewer than all of the
parties hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision.
(g) Captions. Captions are for descriptive purposes only and
shall not control or alter the meaning of this Agreement as set forth in the
text.
(h) Successors and Assigns. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns. Whether or
not any express assignment has been made in this Agreement, the provisions of
this Agreement that are for the Holders of Warrant Certificates are also for the
benefit of, and shall be enforceable by, all subsequent holders of Warrant
Certificates. The acceptance of the Warrant Certificate by the Holder shall be
deemed an acceptance of the terms and conditions of the Warrant Agreement.
(i) Remedies. The Company and the Holders acknowledge that
there would be no adequate remedy at law if any Person fails to perform any of
its obligations hereunder, and accordingly agree that the Company and each
Holder, in addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations of
another party under this Agreement in accordance with the terms and conditions
of this Agreement in any court of the United States or any State thereof having
jurisdiction.
* * * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
METAL MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
15
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
WARRANT NO. _____
NUMBER OF WARRANT(S): _____
METAL MANAGEMENT, INC.
SERIES A WARRANT CERTIFICATE
Dated as of June 29, 2001
Series A Warrants to Purchase Common Stock
This certifies that ____________ or registered assigns (the
"Holder"), is the registered owner of the number of warrants set forth above
(the "Warrants"), each of which represents the right, at any time after June 29,
2001 (the "Original Issuance Date") and on or before 5:00 p.m., Chicago,
Illinois time, on June 29, 2006 (the "Exercise Period"), to purchase from Metal
Management, Inc., a Delaware corporation (the "Company"), at the price per share
of $_____ (the "Exercise Price"), one share of Common Stock, $.01 par value, of
the Company as such stock was constituted as of the Original Issuance Date,
subject to adjustment as provided in the Warrant Agreement hereinafter referred
to, upon surrender hereof, with the subscription form on the reverse hereof duly
executed, by hand or by mail to the Company, and simultaneous payment in full
(by certified or official bank or bank cashier's check payable to the order of
the Company, or by wire transfer of immediately available funds to an account
designated by the Company) of the Exercise Price in respect of each Warrant
represented by this Warrant Certificate that is so exercised, all subject to the
terms and conditions hereof and of the Warrant Agreement.
Upon any partial exercise of the Warrants represented by this
Warrant Certificate, there shall be issued to the holder hereof a new Warrant
Certificate representing the Warrants that were not exercised.
No fractional shares may be issued upon the exercise of rights
to purchase hereunder, and as to any fraction of a share otherwise issuable, the
Company will make a cash payment in lieu of such issuance, as provided in the
Warrant Agreement.
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement, dated as of June 29, 2001 (the "Warrant Agreement"),
between the Company and LaSalle Bank National Association, as Warrant Agent, and
is subject to the terms and provisions
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contained therein. The Warrant Agreement is hereby incorporated by reference in
and made a part of this instrument and is hereby referred to for a description
of the rights, limitation of rights, obligations, duties and immunities
thereunder of the Company and the registered holders of the Warrants. The Holder
of this Warrant Certificate consents to all terms and provisions of the Warrant
Agreement by acceptance hereof. Copies of the Warrant Agreement are on file at
the office of the Company and may be obtained by writing to the Company as
described below.
All notices, requests, demands and other communications
relating to this Warrant Certificate shall be in writing, including by
facsimile, addressed (a) if to the registered owner hereof, to it at the address
furnished by the registered owner to the Company, (b) if to the Company, to it
at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, facsimile no.:
(000) 000-0000, Attention: Chief Financial Officer, or (c) if to the Warrant
Agent, to it at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
facsimile no.: (000) 000-0000, Attention: Xxxx Xxxxxx, Assistant Vice President;
or to such other address as any party shall notify the other party in writing,
and shall be effective, in the case of written notice by mail, three days after
placement into the mails (first class, postage prepaid), and in the case of
notice by facsimile, on the same day as receipt is confirmed.
This Warrant Certificate shall be binding upon and inure to
the sole and exclusive benefit of the Company, its successors and assigns, the
registered Holder or Holders from time to time of the Warrants and the Warrant
Shares.
This Warrant Certificate shall be construed in accordance with
and governed by the internal laws of the State of Illinois.
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REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Dated: __________, 2001
METAL MANAGEMENT, INC.
By: ___________________________
Name:
Title:
WARRANT AGENT
By: ___________________________
Name:
Title:
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[FORM OF REVERSE OF WARRANT CERTIFICATE]
METAL MANAGEMENT, INC.
The transfer of this Warrant Certificate and all rights
hereunder is registrable by the registered holder hereof, in whole or in part,
on the register of the Company upon surrender of this Warrant Certificate at the
office or agency of the Company, duly endorsed or accompanied by a written
instrument of transfer duly executed and in form satisfactory to the Company by
the registered holder hereof or his attorney duly authorized in writing and upon
payment of any necessary transfer tax or other governmental charge imposed upon
such transfer or registration thereof. Upon any partial transfer the Company
will cause to be delivered to such holder a new Warrant Certificate or
Certificates with respect to any portion not so transferred.
This Warrant Certificate may be exchanged at the office or
agency of the Company for Warrant Certificates representing the same aggregate
number of Warrants, each new Warrant Certificate to represent such number of
Warrants as the Holder hereof shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the
Holder of this Warrant Certificate, as such, shall not be entitled to any rights
of a stockholder of the Company, including, but not limited to, the right to
vote, to receive dividends or other distributions, to exercise any preemptive
right or to receive any notice of meetings of stockholders, and shall not be
entitled to receive notice of any proceedings of the Company except as provided
in the Warrant Agreement. Nothing contained herein shall be construed as
imposing any liabilities upon the Holder of this Warrant Certificate to purchase
any securities or as a stockholder of the Company, whether such liabilities are
asserted by the Company or by creditors or stockholders of the Company or
otherwise.
This Warrant Certificate shall be void and all rights
represented hereby shall cease unless exercised before the close of business on
June 29, 2006.
Witness the facsimile seal of the Company and the signature of
its duly authorized officer.
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FORM OF ELECTION TO PURCHASE
(To be executed by the holder of Warrants if such holder desires to exercise
Warrants evidenced by the foregoing Warrant Certificate)
To Metal Management, Inc.:
The undersigned hereby irrevocably elects to exercise
____________ Warrants evidenced by the foregoing Warrant Certificate for, and to
[purchase thereunder, _______________ shares of Common Stock issuable upon
exercise of said Warrants and delivery of $___________ (in cash as provided for
in the foregoing Warrant Certificate) and any applicable taxes payable by the
undersigned pursuant to such Warrant Certificate.][receive, in accordance with
Section 4(d) of the Warrant Agreement, ______ shares of Common Stock issuable
upon exercise of said Warrants and delivery of any applicable taxes payable by
the undersigned pursuant to such Warrant Agreement].
The undersigned requests that certificates for such shares
be issued in the name of ___________________________.
PLEASE INSERT SOCIAL
SECURITY OR TAX
IDENTIFICATION NUMBER
____________________________
____________________________
____________________________
(Please print name and address)
If said number of Warrants shall not be all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests that a
new Warrant Certificate evidencing the Warrants not so exercised be issued in
the name of and delivered to:
____________________________
____________________________
____________________________
(Please print name and address)
Dated: ______________, _____ Name of holder of Warrant
(Print:) __________________________
(By:) __________________________
(Title:) __________________________
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby
sells, assigns and transfers to each assignee set forth below all of the rights
of the undersigned in and to the number of Warrants (as defined in and evidenced
by the foregoing Warrant Certificate) set opposite the name of such assignee
below and in and to the foregoing Warrant Certificate with respect to said
Warrants and the shares of Common Stock issuable upon exercise of said Warrants:
Name of Assignee Address Number of Warrants
If the total of said Warrants shall not be all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests that a
new Warrant Certificate evidencing the Warrants not so assigned be issued in the
name of and delivered to the undersigned.
Name of holder of Warrant
(Print:) _______________________
