REGISTRATION RIGHTS AGREEMENT dated as of December 21, 2004 among MILL SERVICES CORPORATION and THE INVESTORS NAMED HEREIN

Exhibit 10.1

Execution Copy

REGISTRATION RIGHTS AGREEMENT

dated as of December 21, 2004

among

MILL SERVICES CORPORATION

and

THE INVESTORS NAMED HEREIN

TABLE OF CONTENTS


		Page
RECITALS		1

ARTICLE I DEFINITIONS; CONSTRUCTION		1

	1.1 Definitions	1

	1.2 Construction	3

ARTICLE II DEMAND REGISTRATIONS		3

	2.1 Requests for Registration	3

	2.2 Number of Demand Registrations; Expenses	3

	2.3 Effective Registration Statement	4

	2.4 Priority on Demand Registrations	4

ARTICLE III PIGGYBACK REGISTRATIONS		4

	3.1 Right to Piggyback	4

	3.2 Piggyback Expenses	5

	3.3 Priority on Primary Registrations	5

	3.4 Priority on Secondary Registrations	5

ARTICLE IV HOLDBACK AGREEMENTS		5

	4.1 Holdback Agreements	5

ARTICLE V REGISTRATION PROCEDURES		6

	5.1 Registration Procedures	6

ARTICLE VI REGISTRATION EXPENSES		8

	6.1 Registration Expenses	8

	6.2 Sellers’ Expenses	9

ARTICLE VII UNDERWRITTEN OFFERINGS		9

	7.1 Underwriting Agreement	9

	7.2 Obligations of Participants in Underwritten Offerings	9

ARTICLE VIII INDEMNIFICATION		9

	8.1 Company’s Indemnification Obligations	9

	8.2 Holder’s Indemnification Obligations	10

	8.3 Notices; Defense; Settlement	11

	8.4 Indemnity Provision	12

	8.5 Contribution Based on Relative Fault	12

	8.6 Payments	13

TABLE OF CONTENTS

(Continued)


		Page
ARTICLE IX RULE 144 REPORTING		13

	9.1 Rule 144 Reporting	13

ARTICLE X MISCELLANEOUS		13

	10.1 Remedies	13

	10.2 Amendments and Waivers	13

	10.3 Successors and Assigns	14

	10.4 Notices	14

	10.5 Headings	15

	10.6 Invalid Provisions	15

	10.7 Governing Law	15

	10.8 Consent to Jurisdiction and Service of Process	15

	10.9 Waiver of Jury Trial	16

	10.10 Counterparts	16

	10.11 Deferral	16

	10.12 Additional Investors	16

This REGISTRATION RIGHTS AGREEMENT, dated as of December 21, 2004 (this “Agreement”), is by and among Mill Services Corporation, a Delaware corporation (the “Company”), Mill Services Holdings LLC, a Delaware limited liability company (“Holdings”), and the Investors (as defined herein).

RECITALS

WHEREAS, the Company, Holdings and the Investors have entered into a Stockholders’ Agreement dated as of the date hereof (the “Stockholders’ Agreement”);

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

1.1 Definitions. As used in this Agreement, the following defined terms shall have the meanings set forth below:

“Agreement” has the meaning set forth in the preamble hereto.

“Business Day” means a day other than Saturday, Sunday or any day on which banks located in the State of New York are authorized or obligated to close.

“Commission” means the U.S. Securities and Exchange Commission.

“Common Stock” means the Common Stock, par value $0.001 per share, of the Company and any securities into which the Common Stock shall have been changed or any securities resulting from any reclassification or recapitalization of the Common Stock.

“Company” has the meaning set forth in the preamble hereto.

“Demand Registrations” has the meaning set forth in Section 2.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar Federal statute then in effect, and any reference to a particular section thereof shall include a reference to the equivalent section, if any, of any such similar Federal statute, and the rules and regulations thereunder.

“Holder Indemnitees” has the meaning set forth in Section 8.1.

“Investors” means I Xxxxxxx Xxxxxx, IMC Tube City Holdings, Inc., IMC Tube City Investments, LLC, Xxxxxx Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxx Xxxxxxxxx and Xxxxxxxx X. Xxxxx.

“Long-Form Registration” has the meaning set forth in Section 2.1.

“Person” means any individual, corporation, partnership, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Piggyback Registration” has the meaning set forth in Section 3.1.

“Prospectus” means the Prospectus included in any Registration Statement (including without limitation a Prospectus that disclosed information previously omitted from a Prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any Prospectus supplement, with respect to the terms of the offering of any portion of the securities covered by such Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

“Public Offering” means the consummation of the initial underwritten public offering of Common Stock registered under the Securities Act of 1933, as amended.

“Registrable Securities” means (a) the Common Stock issued or issuable at any time to Holdings or an Investor, including, without limitation, in connection with the exercise of any warrant or option to purchase any Common Stock and (b) any securities issued or issuable with respect to such shares of Common Stock in connection with a combination of shares, recapitalization, stock dividend, merger, consolidation or other reorganization. Registrable Securities will continue to maintain their status as Registrable Securities in the hands of any transferee from Holdings or an Investor, provided such transferee executes a joinder agreement described in Section 10.12. As to any particular Registrable Securities, such securities will cease to be Registrable Securities when they have been (x) effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them or (y) eligible for transfer pursuant to Rule 144 (or any similar rule then in force) under the Securities Act without restriction (including volume and manner of sale restrictions) or otherwise transferred and, in each case, new certificates for them not bearing a restrictive Securities Act legend have been delivered by the Company and can be sold without complying with the registration requirements of the Securities Act.

“Registration Expenses” has the meaning set forth in Section 6.1.

“Registration Statement” means any Registration Statement of the Company which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all material incorporated by reference in such Registration Statement.

“Securities Act” means the Securities Act of 1933, as amended, or any similar Federal statute then in effect, and any reference to a particular section thereof shall include a reference to a comparable section, if any, of any such similar Federal statute, and the rules and regulations thereunder.

“Short -Form Registration” has the meaning set forth in Section 2.1.

1.2 Construction. For purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires: (a) words using the singular or plural number also include the plural or singular number, respectively, and the use of any gender herein shall be deemed to include the other genders; (b) references herein to “Articles,” “Sections,” “subsections” and other subdivisions, and to Exhibits, Schedules, Annexes and other attachments, without reference to a document are to the specified Articles, Sections, subsections and other subdivisions of, and Exhibits, Schedules, Annexes and other attachments to, this Agreement; (c) a reference to a subsection without further reference to a Section is a reference to such subsection as contained in the same Section in which the reference appears, and this rule shall also apply to other subdivisions within a Section or subsection; (d) the words “herein,” “hereof,” “hereunder,” “hereby” and other words of similar import refer to this Agreement as a whole and not to any particular provision; (e) the words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation”; and (f) all accounting terms used and not expressly defined herein have the respective meanings given to them under United States generally accepted accounting principles.

ARTICLE II

DEMAND REGISTRATIONS

2.1 Requests for Registration. Subject to Sections 2.2 and 2.3, Holdings may request, in writing, registration under the Securities Act of all or part of its Registrable Securities. Thereafter, the Company will use all reasonable efforts to effect the registration under the Securities Act (a) on Form S-l or any similar long-form registration statement (a “Long-Form Registration”) or (b) on Form S-3 or any similar short-form registration statement (a “Short-Form Registration”) if the Company qualifies to effect a Short Form Registration, and will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten Business Days after the receipt of the Company’s notice pursuant to Section 3.1, subject to the provisions of Section 2.4. All registrations requested pursuant to this Section 2.1 are referred to herein as “Demand Registrations”.

2.2 Number of Demand Registrations; Expenses. Subject to Sections 2.1 and 2.3 hereof, Holdings shall be entitled to three (3) Long-Form Registrations and unlimited Short-Form Registrations. The Company will pay all Registration Expenses in connection with any Demand Registration, including any Registration Statement that is not deemed to be effected pursuant to the provisions of Section 2.3.

2.3 Effective Registration Statement. A registration requested pursuant to Section 2.1 of this Agreement shall not be deemed to have been effected (a) unless a Registration Statement with respect thereto has been declared effective by the Commission, (b) if after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason, and, as a result thereof, the Registrable Securities covered thereby have not been sold, or (c) the Registration Statement does not remain effective for a period of at least 180 days beyond the effective date thereof or, with respect to an underwritten offering of Registrable Securities, until 90 days after the commencement of the distribution by the holders of the Registrable Securities included in such Registration Statement. If a registration requested pursuant to this Article II is deemed not to have been effected as provided in this Section 2.3, then the Company shall continue to be obligated to effect the number of Demand Registrations set forth in Section 2.2 without giving effect to such requested registration.

2.4 Priority on Demand Registrations. If the managing underwriters of an underwritten Demand Registration advise the Company in writing that in their opinion the number of Registrable Securities and other shares of Common Stock proposed to be included exceeds the number of Registrable Securities and other securities which can be sold in such offering, the Company will (a) first, include in such registration, to the exclusion of any other securities, the number of Registrable Securities requested to be included by Holdings and I Xxxxxxx Xxxxxx, IMC Tube City Holdings, Inc. and IMC Tube City Investments, LLC (collectively, “Coslov”); provided, that Coslov shall be entitled to sell the same proportion of Registrable Securities owned by them which Holdings proposes to sell multiplied by 1.25; (b) second, the securities which the Company proposes to sell; (c) third, any other Registrable Securities requested to be included in such registration pursuant to the terms of this Agreement, pro rata based upon the total number of shares which such holders proposed to include in such registration; and (d) fourth, any other shares of Common Stock proposed to be included in such registration, pro rata, based upon the total number of shares which such holders proposed to include in such registration.

ARTICLE III

PIGGYBACK REGISTRATIONS

3.1 Right to Piggyback. Whenever the Company proposes to register any of its equity securities under the Securities Act (other than for use in a Rule 145 transaction or for registrations for employee plans), including pursuant to Article II hereof, whether or not for its own account, and the registration form to be used may be used for the registration of Registrable Securities (a “Piggyback Registration”), the Company will give notice to Holdings (other than in the case of a registration pursuant to Article II hereof) and to all Investors of its intention to effect such a registration and will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten Business Days after the receipt of the Company’s notice, subject to the provisions of Sections 3.3 and 3.4. Such requests for inclusion shall specify the number of Registrable Securities intended to be disposed of and the intended method of distribution thereof. The foregoing provisions of this Section 3.1 and this Article III shall apply (a) following the closing of the Public Offering, and (b) prior to the closing of the Public Offering, to the Investors only to the extent that Holdings proposes to register Registrable Securities in the Public Offering.

3.2 Piggyback Expenses. The Registration Expenses of Holdings and the Investors will be paid by the Company in all Piggyback Registrations.

3.3 Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (a) first, the securities the Company proposes to sell, (b) second, the number of the Registrable Securities proposed to be included in such registration by Holdings, (c) third, the number of Registrable Securities proposed to be included in such registration by the Investors, pro rata among the respective holders thereof based upon the total number of shares which such holders proposed to include in such registration, and (d) that number of other shares of Common Stock proposed to be included in such registration, pro rata among the respective holders thereof based upon the total number of shares which such holders propose to include in such registration.

3.4 Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders (other than Holdings or the Investors) of the Company’s securities, and the managing underwriters advise the Company that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (a) first, the number of shares of Common Stock requested to be included by such holders, Holdings and the Investors, pro rata based upon the number of shares which such holders, Holdings and the Investors requested to be included, (b) second, the securities which the Company proposes to sell and (c) third, any other securities proposed to be included in such registration.

ARTICLE IV

HOLDBACK AGREEMENTS

4.1 Holdback Agreements.

(a) Each holder of Registrable Securities agrees not to effect any public sale or distribution of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during the 15 days prior to, and the 90-day period beginning on, the effective date of any underwritten Demand Registration (except as part of such underwritten registration), unless (i) the managing underwriters of the registered public offering otherwise agree or (ii) the executive officers, directors and 10% stockholders of the Company shall not be similarly restricted; provided, that the Company shall use commercially reasonable efforts to obtain the agreement of the managing underwriter of any such underwritten Demand Registration to permit Investors (other than executive officers, directors and 10% stockholders of the Company) to sell during such period such number of shares of Registrable Securities that could be sold by the applicable holder in a consecutive three month period pursuant to Rule 144 (or any similar rule then in effect) under the Securities Act.

(b) The Company agrees not to effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such equity securities, during the 15 days prior to, and the 90-day period beginning on, the effective date of any underwritten Piggyback Registration (except as part of such underwritten offering or for use in a Rule 145 transaction or for registrations for employee plans), unless (i) the underwriters managing the registered public offering otherwise agree or (ii) the executive officers, directors and 10% stockholders of the Company shall not be similarly restricted.

ARTICLE V

REGISTRATION PROCEDURES

5.1 Registration Procedures. Whenever holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company will use commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as possible, and pursuant thereto the Company will as expeditiously as reasonably possible:

(a) prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use all reasonable efforts to cause such Registration Statement to become and remain effective until the completion of the distribution contemplated thereby; provided, that as promptly as practicable before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will (i) furnish to counsel selected by the holders of Registrable Securities copies of all such documents proposed to be filed and (ii) notify each holder of Registrable Securities covered by such Registration Statement of any request by the Commission to amend such Registration Statement or amend or supplement any Prospectus, or any stop order issued or threatened by the Commission, and take all reasonable actions required to prevent the entry of such stop order or to promptly remove it if entered;

(b) (i) prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement and (ii) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;

(c) furnish to each seller of Registrable Securities, without charge, such number of conformed copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus and, in each case including all exhibits) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

(d) use all reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any

seller thereof shall reasonably request, to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.1(d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction;

(e) use all reasonable efforts to furnish to each seller of Registrable Securities a signed copy, addressed to such seller (and the underwriters, if any) of an opinion of counsel for the Company or special counsel to the selling stockholders, dated the effective date of such Registration Statement (and, if such Registration Statement includes an underwritten public offering, dated the date of the closing under the underwriting agreement), covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) as are customarily covered in opinions of issuer’s counsel delivered to the underwriters in underwritten public offerings, and such other legal matters as the seller (or the underwriters, if any) may reasonably request;

(f) promptly notify each seller of Registrable Securities, at a time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event known to the Company as a result of which the Prospectus included in such Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will prepare and furnish such seller a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(g) cause all such Registrable Securities to be listed on each securities exchange and quotation system on which similar securities issued by the Company are then listed and, if such securities are not then listed on a national securities exchange or the Nasdaq Stock Market, cause them to be so listed or qualified (provided, that the Company then meets or is reasonably capable of meeting the eligibility requirements for such an exchange or system and such exchange or system is reasonably satisfactory to the managing underwriters) and enter into such customary agreements as may be required in furtherance thereof, including without limitation listing applications and indemnification agreements in customary form;

(h) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;

(i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any

attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement to enable them to conduct a reasonable investigation within the meaning of the Securities Act;

(j) subject to other provisions hereof, use all reasonable efforts to cause such Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities or self-regulatory organizations as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;

(k) promptly notify the holders of the Registrable Securities of the issuance of any stop order by the Commission or the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or “blue sky” laws, and use every reasonable effort to obtain the lifting at the earliest possible time of any stop order suspending the effectiveness of any Registration Statement or of any order preventing or suspending the use of any preliminary Prospectus;

(l) use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(m) obtain one or more comfort letters, addressed to the sellers of Registrable Securities (and the underwriters, if any), dated as of the effective date of such Registration Statement (and, if such registration includes an underwritten public offering dated the date of the closing under the underwriting agreement for such offering), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request; and

(n) enter into such customary agreements (including underwriting agreements with customary provisions) as the sellers of the Registrable Securities or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities.

ARTICLE VI

REGISTRATION EXPENSES

6.1 Registration Expenses. All registration and filing fees, fees and expenses of compliance with securities or blue sky laws (including the fees and expenses of counsel in connection with blue sky qualifications of the Registrable Securities), printing expenses, listing fees for securities to be registered on a national securities exchange or the Nasdaq Stock Market

and all independent certified public accountants, underwriters (excluding discounts and commissions) and other Persons retained by the Company and reasonable fees and expenses of one counsel to the holders representing more than 50% of the Registrable Securities registered in connection with the subject registration (all such expenses being herein called “Registration Expenses”), will be borne as provided in Sections 2.2 and 3.2.

6.2 Sellers’ Expenses. Except for counsel fees provided for in Section 6.1, the Company shall have no obligation to pay any fees, expenses or disbursements of any holder of Registrable Securities, including underwriting discounts or commissions attributable to the sale of Registered Securities, which discounts and commissions will be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.

ARTICLE VII

UNDERWRITTEN OFFERINGS

7.1 Underwriting Agreement. If requested by the underwriters for any underwritten offering of Registrable Securities pursuant to a Demand Registration, the Company will enter into an underwriting agreement with such underwriters for such offering, which agreement shall contain such representations and warranties by the Company and such other terms as are generally included in agreements of such type, including without limitation indemnities customarily included in such agreements. The holders of the Registrable Securities will cooperate in good faith with the Company in the negotiation of the underwriting agreement.

7.2 Obligations of Participants in Underwritten Offerings. No Person may participate in any underwritten registration hereunder unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, escrow agreements and other documents required under the terms of such underwriting arrangements and consistent with the provisions of this Agreement.

ARTICLE VIII

INDEMNIFICATION

8.1 Company’s Indemnification Obligations. The Company agrees to indemnify and hold harmless each of the holders of any Registrable Securities covered by any Registration Statement referred to herein, each other Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective officers, directors, employees, general and limited partners, members, managers and trustees (each, a “Holder Indemnitee” and, collectively, the “Holder Indemnitees”), as follows:

(a) against any and all loss, liability, claim, damage or expense arising out of or based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment or supplement thereto), including all documents incorporated therein by reference, or in any preliminary Prospectus or Prospectus (or any

amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(b) against any and all loss, liability, claim, damage and expense to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim based upon any such untrue statement or omission or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and

(c) against any and all expense incurred by them in connection with investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim based upon any such untrue statement or omission or any such alleged untrue statement or omission, to the extent that any such expense is not paid under the immediately preceding clause (a) or (b);

provided, however, that the foregoing indemnity does not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of any holder in their capacity as such expressly for use in the preparation of any Registration Statement (or any amendment or supplement thereto), including all documents incorporated therein by reference, or in any preliminary Prospectus or Prospectus (or any amendment or supplement thereto); and provided, further, that the Company will not be liable to any holder or any other Holder Indemnitee under the indemnity in this Section 8.1 with respect to any preliminary Prospectus or the final Prospectus or the final Prospectus as amended or supplemented, as the case may be, to the extent that any such loss, liability, claim, damage or expense of such Holder Indemnitee results from the fact that such holder sold Registrable Securities to a Person to whom there was not sent or given (unless such delivery shall be deemed to be delivered under applicable law), at or prior to the written confirmation of such sale, a copy of the final Prospectus or of the final Prospectus as then amended or supplemented, whichever is most recent, if the Company has previously furnished copies thereof to such holder at a time sufficient to allow for a timely distribution prior to confirmation of the sale of such Securities to such person by such holder, and such untrue statement or omission or alleged untrue statement or omission was corrected in such final Prospectus or final Prospectus as then amended or supplemented.

8.2 Holder’s Indemnification Obligations. In connection with any Registration Statement in which a holder of Registrable Securities is participating, each such holder agrees to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 8.1 of this Agreement) the Company and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act with respect to any statement or alleged statement of a material fact in such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or omission or alleged omission of a material fact from such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, if such statement or alleged statement

or omission or alleged omission was made about such holder in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of such holder in their capacity as such expressly for use in the preparation thereof. The obligations of each holder pursuant to this Section 8.2 are to be several and not joint; provided, however, that with respect to each claim pursuant to this Section 8.2, each such holder’s maximum liability under this Section shall be limited to an amount equal to the net proceeds actually received by such holder (after deducting any underwriting discount and expenses) from the sale of Registrable Securities being sold pursuant to such Registration Statement or Prospectus by such holder.

8.3 Notices; Defense; Settlement. Promptly after receipt by an indemnified party hereunder of written notice of the commencement of any action or proceeding involving a claim referred to in Section 8.1 or Section 8.2 of this Agreement, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under Section 8.1 or Section 8.2 of this Agreement except to the extent that the indemnifying party is actually materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party will be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, in which case the indemnifying party shall not be liable for the fees and expenses of (a) more than one counsel for all holders of Registrable Securities, selected by Holdings or the Investors, or (b) more than one counsel for the Company in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels. The indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not such indemnified party or any Person who controls such indemnified party is a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding. Notwithstanding anything to the contrary set forth herein, and without limiting any of the rights set forth above, in any event any party will have the right to retain, at its own expense, counsel with respect to the defense of a claim.

8.4 Indemnity Provision. The Company and each holder of Registrable Securities requesting registration shall provide for the foregoing respective indemnities (with appropriate modifications) in any underwriting agreement with respect to any required registration or other qualification of securities under any Federal or state law or regulation of any governmental authority other than the Securities Act.

8.5 Contribution Based on Relative Fault. If the indemnification provided for in Sections 8.1 and 8.2 is unavailable or insufficient to hold harmless an indemnified party under such Sections, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in Section 8.1 or 8.2 in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other, in connection with statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations, including without limitation the relative benefits received by each party from the offering of the securities covered by such Registration Statement, the parties’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted and the opportunity to correct and prevent any statement or omission. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statements or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 8.5 were to be determined by pro rata or per capita allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the first sentence of this Section 8.5. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this Section 8.5 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim (which shall be limited as provided in Section 8.3 if the indemnifying party has assumed the defense of any such action in accordance with the provisions thereof) which is the subject of this Section 8.5. Promptly after receipt by an indemnified party under this Section 8.5 of notice of the commencement of any action against such party in respect of which a claim for contribution may be made against an indemnifying party under this Section 8.5, such indemnified party shall notify the indemnifying party in writing of the commencement thereof if the notice specified in Section 8.3 has not been given with respect to such action; provided, however, that the omission to so notify the indemnifying party shall not relieve the indemnifying party from any liability which it may otherwise have to any indemnified party under this Section 8.5, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. The Company and each holder of Registrable Securities agrees with each other and the underwriters of the Registrable Securities, if requested by such underwriters, that (a) the underwriters’ portion of such contribution shall not exceed the underwriting discount and (b) that the amount of such contribution shall not exceed an amount equal to the net proceeds actually received by such indemnifying party from the sale of Registrable Securities in the offering to which the losses, liabilities, claims, damages or expenses of the indemnified parties relate. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

8.6 Payments. The indemnification required by this Article VIII, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.

ARTICLE IX

RULE 144 REPORTING

9.1 Rule 144 Reporting. The Company hereby agrees as follows:

(a) The Company shall use its commercially reasonable efforts to make and keep public information available, as such terms are understood and defined in Rule 144 under the Securities Act, at all times from and after 90 days following the effective date of the Public Offering.

(b) The Company shall use its best efforts to file with the Commission in a timely manner all reports and other documents as the Commission may prescribe under Section 13(a) or 15(d) of the Exchange Act at any time after the Company has become subject to such reporting requirements of the Exchange Act.

(c) The Company shall furnish to each holder of Registrable Securities forthwith upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 (at any time from and after 90 days following the effective date of the Public Offering), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents so filed as a holder may reasonably request to avail itself of any rule or regulation of the Commission allowing a holder of Registrable Securities to sell any such securities without registration.

ARTICLE X

MISCELLANEOUS

10.1 Remedies. In the event of a breach by any party to this Agreement of its obligations under this Agreement, any party injured by such breach, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The parties agree that the provisions of this Agreement shall be specifically enforceable, it being agreed by the parties that the remedy at law, including monetary damages, for breach of any such provision will be inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived.

10.2 Amendments and Waivers. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective against

the Company or any holder of Registrable Securities, unless such modification, amendment or waiver is approved in writing by the Company, Holdings and the holders of not less than 50% of the Registrable Securities held by the Investors. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

10.3 Successors and Assigns. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.

10.4 Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally against written receipt or by facsimile transmission or mailed by pre-paid registered or certified mail, return receipt requested or mailed by overnight courier prepaid to the parties at the following addresses or facsimile numbers:

If to the Company, to:

0000 Xxxxxxxx Xxxxxx Xxxxx

Xxxxxxx, Xxxxxxxxxxxx 00000-0000

Facsimile: (000) 000-0000

Attn: President and Chief Executive Officer

with a copy to:

Xxxxxx, Xxxxx & Xxxxxxx LLP

000 Xxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000

Facsimile: 000-000-0000

Attn.: Xxxxx X. Xxxxxx, Esq.

If to any Investor, to:

The last address or facsimile number for such Person set forth in the records of the Company.

All such notices, requests and other communications will (a) if delivered personally to the address as provided in this Section 10.4, be deemed given upon delivery, (b) if delivered by facsimile transmission to the facsimile number as provided in this Section 10.4, be deemed given upon receipt of confirmation, (c) if delivered by mail in the manner described above to the address as provided in this Section 10.4, be deemed given on the earlier of the third full Business Day following the day of mailing or upon receipt, and (d) if delivered by overnight courier to the address provided in this Section 10.4, be deemed given on the earlier of the first Business Day following the date sent by such overnight courier or upon receipt. Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other parties hereto.

10.5 Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.

10.6 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in result to such illegal, invalid or unenforceable provision as may be possible.

10.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of New York.

10.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES HERETO CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 15 CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

10.9 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO.

10.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

10.11 Deferral. Notwithstanding the provisions of Articles II and III, the Company’s obligations to file a Registration Statement, or to cause such Registration Statement to become and remain effective, shall be suspended for a period not to exceed 90 consecutive days if there exists at the time material non-public information relating to the Company that, in the reasonable opinion of the Company’s board of directors or counsel, should not be disclosed; provided, further, that the Company may not invoke the foregoing provision more than two times in any 12-month period.

10.12 Additional Investors. Any transferee of Registrable Securities permitted pursuant to the terms of the Stockholders’ Agreement from Holdings or an Investor shall be entitled to the benefits of this Agreement upon execution by such transferee of a joinder agreement in form and substance reasonably satisfactory to the Company stating that such transferee agrees to be bound by the terms hereof applicable to such transferor.

[Signature page follows.]


INVESTORS:

/s/ I Xxxxxxx Xxxxxx
I Xxxxxxx Xxxxxx

IMC Tube City Holdings, Inc.

By:		/s/ I Xxxxxxx Xxxxxx
Name:		I Xxxxxxx Xxxxxx
Title:		President

IMC Tube City Investments, LLC

By:
Name:
Title:

/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx


J. Xxxxx Xxxxxxx


Xxxxxx X. Xxxxxxx


Xxxxxx Xxxxxx


Xxxxxxx X. Xxxxxxx

Signature Page to Registration Rights Agreement


INVESTORS:


I Xxxxxxx Xxxxxx

IMC Tube City Holdings, Inc.

By:
Name:
Title:

IMC Tube City Investments, LLC

By:		/s/ Xxxx X. Xxxxxxx
Name:		Xxxx X. Xxxxxxx
Title:		Sole Manager


Xxxxxx Xxxxxx


J. Xxxxx Xxxxxxx


Xxxxxx X. Xxxxxxx


Xxxxxx Xxxxxx


Xxxxxxx X. Xxxxxxx

Signature Page to Registration Rights Agreement


INVESTORS:


I Xxxxxxx Xxxxxx

IMC Tube City Holdings, Inc.

By:
Name:
Title:

IMC Tube City Investments, LLC

By:
Name:
Title:

/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx


J. Xxxxx Xxxxxxx

/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx

/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx

/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx

Signature Page to Registration Rights Agreement


INVESTORS:


I Xxxxxxx Xxxxxx

IMC Tube City Holdings, Inc.

By:
Name:
Title:

IMC Tube City Investments, LLC

By:
Name:
Title:


Xxxxxx Xxxxxx

/s/ J. Xxxxx Xxxxxxx
J. Xxxxx Xxxxxxx


Xxxxxx X. Xxxxxxx


Xxxxxx Xxxxxx


Xxxxxxx X. Xxxxxxx

Signature Page to Registration Rights Agreement

/s/ Xxxxxx Xxxxxx

Xxxxxx Xxxxxx

Xxxxx Xxxxxx

Xxxxx Xxx Xxxxxxxxx

Xxxxxxxx X. Xxxxx

Signature Page to Registration Rights Agreement

Xxxxxx Xxxxxx

/s/ Xxxxx Xxxxxx

Xxxxx Xxxxxx

Xxxxx Xxx Xxxxxxxxx

Xxxxxxxx X. Xxxxx

Signature Page to Registration Rights Agreement

Xxxxxx Xxxxxx

Xxxxx Xxxxxx

/s/ Xxxxx Xxx Xxxxxxxxx

Xxxxx Xxx Xxxxxxxxx

Xxxxxxxx X. Xxxxx

Signature Page to Registration Rights Agreement

Xxxxxx Xxxxxx

Xxxxx Xxxxxx

Xxxxx Xxx Xxxxxxxxx

/s/ Xxxxxxxx X. Xxxxx

Xxxxxxxx X. Xxxxx

Signature Page to Registration Rights Agreement

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Table of Contents

REGISTRATION RIGHTS AGREEMENT dated as of December 21, 2004 among MILL SERVICES CORPORATION and THE INVESTORS NAMED HEREIN

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