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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of the _____ day of December, 1997, by and between METAL
MANAGEMENT, INC., a Delaware corporation (the "COMPANY"), and XXXXXX X. XXXXXX,
XXXXXX X. XXXXXX, XXXXXX X. XXXXXX and XXXX X. XXXXXX (each a "STOCKHOLDER" and
collectively the "STOCKHOLDERS").
RECITALS
WHEREAS, the Stockholders and the Company are parties to that certain
Purchase Agreement dated of even date herewith (the "PURCHASE AGREEMENT"),
pursuant to which each Stockholder has agreed to sell, transfer and convey to
the Company all of the ownership interests (the "PURCHASED SECURITIES") in
Kankakee Scrap Corporation, an Illinois corporation ("SCRAP") in return for
cash and shares of common stock, par value $.01 per share of the Company (the
"COMMON STOCK"); and
WHEREAS, as a condition to the Stockholders agreeing to such transfer
and sale, the Stockholders are being granted registration rights with respect
to their shares of Common Stock;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. (a) Piggyback Registration. If, at any time during the
five-year period commencing December 1, 1997, the Company shall file a
registration statement (other than a registration statement on Form X-0, Xxxx
X-0, or any successor form) with the Securities and Exchange Commission (the
"COMMISSION") while any Registrable Securities (as hereinafter defined) are
outstanding, the Company shall give all the Stockholders who are then holders
of any Registrable Securities (the "ELIGIBLE HOLDERS") at least 30 days' prior
written notice of the filing of such registration statement. If requested by
an Eligible Holder in writing within 20 days after receipt of any such notice,
the Company shall, at the Company's sole expense (other than the fees and
disbursements of counsel for the Eligible Holders, and the underwriting
discounts, if any, payable in respect of the Registrable Securities sold by any
Eligible Holder), register all or, at each Eligible Holder's option, any
portion of the Registrable Securities of any Eligible Holders who shall have
made such request, concurrently with the registration of such other securities,
all to the extent requisite to permit the public offering and sale of the
Registrable Securities through the facilities of all appropriate securities
exchanges, if any, on which the Company's Common Stock is being sold or on the
over-the-counter market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to become
effective as promptly as practicable. Notwithstanding the foregoing, if the
managing underwriter of any such offering shall advise the Company in writing
that, in its opinion, the distribution of all or a portion of the Registrable
Securities requested to be included in the registration concurrently with the
securities being registered by the Company would materially adversely affect
the distribution of such securities by the Company for its own account, then
any Eligible Holder who shall have requested registration of
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his or its Registrable Securities shall delay the offering and sale of such
Registrable Securities (or the portions thereof so designated by such managing
underwriter) for such period, not to exceed 120 days (the "DELAY PERIOD"), as
the managing underwriter shall request. As used herein, "REGISTRABLE
SECURITIES" shall mean (i) the shares of Common Stock owned by the Stockholders
on the date hereof as set forth on Schedule 1(a) which, with respect to each
Stockholder, have not been previously sold pursuant to a registration statement
or Rule 144 promulgated under the Securities Act of 1933, as amended (the
"SECURITIES ACT").
(b) In the event of a registration pursuant to the
provisions of this Section 1, the Company shall use its best efforts to cause
the Registrable Securities so registered to be registered or qualified for sale
under the securities or blue sky laws of such jurisdictions as the Eligible
Holder or such holders may reasonably request; provided, however, that the
Company shall not be required to qualify to do business in any state by reason
of this Section 1(b) in which it is not otherwise required to qualify to do
business.
(c) The Company shall keep effective any registration or
qualification contemplated by this Section 1 and shall from time to time amend
or supplement each applicable registration statement, preliminary prospectus,
final prospectus, application, document and communication for such period of
time as shall be required to permit the Eligible Holders to complete the offer
and sale of the Registrable Securities covered thereby. The Company shall in
no event be required to keep any such registration or qualification in effect
for a period in excess of nine months from the date on which the Eligible
Holders are first free to sell such Registrable Securities; provided, however,
that, if the Company is required to keep any such registration or qualification
in effect with respect to securities other than the Registrable Securities
beyond such period, the Company shall keep such registration or qualification
in effect as it relates to the Registrable Securities for so long as such
registration or qualification remains or is required to remain in effect in
respect of such other securities.
(d) In the event of a registration pursuant to the
provisions of this Section 1, the Company shall furnish to each Eligible Holder
such number of copies of the registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), such reasonable
number of copies of each prospectus contained in such registration statement
and each supplement or amendment thereto (including each preliminary
prospectus), all of which shall conform to the requirements of the Securities
Act and the rules and regulations thereunder, and such other documents, as any
Eligible Holder may reasonably request to facilitate the disposition of the
Registrable Securities included in such registration.
(e) In the event of a registration pursuant to the
provisions of this Section 1, the Company shall furnish each Eligible Holder of
any Registrable Securities so registered with an opinion of its counsel
(reasonably acceptable to the Eligible Holders) to the effect that: (i) the
registration statement has become effective under the Securities Act and no
order suspending the effectiveness of the registration statement, preventing or
suspending the use of the registration statement, any preliminary prospectus,
any final prospectus, or any amendment or supplement
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thereto has been issued, nor has the Commission or any securities or blue sky
authority of any jurisdiction instituted or threatened to institute any
proceedings with respect to such an order; (ii) the registration statement and
each prospectus forming a part thereof (including each preliminary prospectus),
and any amendment or supplement thereto, comply as to form with the Securities
Act and the rules and regulations thereunder; and (iii) such counsel has no
knowledge of any material misstatement or omission in such registration
statement or any prospectus, as amended or supplemented. Such opinion shall
also state the jurisdictions in which the Registrable Securities have been
registered or qualified for sale pursuant to the provisions of Section 1(b).
(f) The Company agrees that until all the Registrable
Securities have been sold under a registration statement or pursuant to Rule
144 under the Securities Act, it shall use its best efforts to keep current in
filing all reports, statements and other materials required to be filed with
the Commission to permit holders of the Registrable Securities to sell such
securities under Rule 144.
(g) The Company shall notify the Eligible Holders of the
Registrable Securities promptly when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed.
(h) The Company shall promptly notify the Eligible
Holders of the Registrable Securities at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, would include an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, and at the reasonable request of the Eligible
Holders of the Registrable Securities prepare and furnish to them such 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 not misleading in the light
of the circumstances under which they were made.
2. Indemnification. () Subject to the conditions set forth
below, the Company agrees to indemnify and hold harmless each Eligible Holder,
its officers, directors, partners, employees, agents, and counsel, and each
person, if any, who controls any such person within the meaning of Section 15
of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), from and against any and all loss, liability,
charge, claim, damage, and expense whatsoever (which shall include, for all
purposes of this Section 2, but not be limited to, reasonable attorneys' fees
and any and all reasonable expenses whatsoever incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any registration statement, preliminary prospectus, or final
prospectus
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(as from time to time amended and supplemented), or any amendment or supplement
thereto, relating to the sale of any of the Registrable Securities or (B) in
any application or other document or communication (in this Section 2
collectively called an "APPLICATION") executed by or on behalf of the Company
or based upon written information furnished by or on behalf of the Company
filed in any jurisdiction in order to register or qualify any of the
Registrable Securities under the securities or blue sky laws thereof or filed
with the Commission or any securities exchange; or any omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements made therein not misleading, unless (x) such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to such Eligible Holder by or on behalf
of such person expressly for inclusion in any registration statement,
preliminary prospectus, or final prospectus, or any amendment or supplement
thereto, or in any application, as the case may be, or (y) such loss,
liability, charge, claim, damage or expense arises out of such Eligible
Holder's failure to comply with the terms and provisions of this Agreement, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in this Agreement. The foregoing agreement to indemnify
shall be in addition to any liability the Company may otherwise have, including
liabilities arising under this Agreement.
If any action is brought against any Eligible Holder or any of its
officers, directors, partners, employees, agents, or counsel, or any
controlling persons of such person (an "INDEMNIFIED PARTY") in respect of which
indemnity may be sought against the Company pursuant to the foregoing
paragraph, such indemnified party or parties shall promptly notify the Company
in writing of the institution of such action (but the failure so to notify
shall not relieve the Company from any liability other than pursuant to this
Section 2(a)) and the Company shall promptly assume the defense of such action,
including the employment of counsel (reasonably satisfactory to such
indemnified party or parties), provided that the indemnified party shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the Company in connection with the defense of such action or the
Company shall not have promptly employed counsel reasonably satisfactory to
such indemnified party or parties, or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses
available to it or them or to other indemnified parties which are different
from or additional to those available to the Company, in any of which events
such fees and expenses shall be borne by the Company and the Company shall not
have the right to direct the defense of such action on behalf of the
indemnified party or parties. Anything in this Section 2 to the contrary
notwithstanding, the Company shall not be liable for any settlement of any such
claim or action effected without its written consent, which shall not be
unreasonably withheld. The Company shall not, without the prior written
consent of each indemnified party that is not released as described in this
sentence, settle or compromise any action, or permit a default or consent to
the entry of judgment in or otherwise seek to terminate any pending or
threatened action, in respect of which indemnity may be sought hereunder
(whether or not any indemnified party is a party thereto), unless such
settlement, compromise, consent, or termination includes an unconditional
release of each indemnified party from all liability in respect of such action.
The Company agrees promptly to notify Eligible Holders of the commencement of
any litigation or proceedings against the Company
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or any of its officers or directors in connection with the sale of any
Registrable Securities or any preliminary prospectus, prospectus, registration
statement, or amendment or supplement thereto, or any application relating to
any sale of any Registrable Securities.
(b) Each Eligible Holder agrees to indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who shall have signed any registration statement covering Registrable
Securities held by such Eligible Holder, each other person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, and its or their respective counsel, to the
same extent as the foregoing indemnity from the Company to such Eligible Holder
in Section 2(a) above but only with respect to statements or omissions, if any,
made in any registration statement, preliminary prospectus, or final prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto, or in any application, in reliance upon and in conformity with written
information furnished to the Company with respect to such Eligible Holder by or
on behalf of such Eligible Holder, expressly for inclusion in any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be. If
any action shall be brought against the Company or any other person so
indemnified based on any such registration statement, preliminary prospectus,
or final prospectus or any amendment or supplement thereto, or in any
application, and in respect of which indemnity may be sought against such
Eligible Holder pursuant to this Section 2(b), such Eligible Holder shall have
the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the indemnified
parties, by the provisions of Section 2(a).
(c) To provide for just and equitable contribution, if
(i) an indemnified party makes a claim for indemnification pursuant to Section
2(a) or 2(b) (subject to the limitations thereof) but it is found in a final
judicial determination, not subject to further appeal, that such
indemnification may not be enforced in such case, even though this Agreement
expressly provides for indemnification in such cases, or (ii) any indemnified
or indemnifying party seeks contribution under the Securities Act, the Exchange
Act or otherwise, then the Company (including for this purpose any contribution
made by or on behalf of any director of the Company, any officer of the Company
who signed any such registration statement, any controlling person of the
Company, and its or their respective counsel), as one entity, and the Eligible
Holders of the Registrable Securities, included in such registration in the
aggregate (including for this purpose any contribution by or on behalf of an
indemnified party), as a second entity, shall contribute to the losses,
liabilities, claims, damages, and expenses whatsoever to which any of them may
be subject, on the basis of relevant equitable considerations such as the
relative fault of the Company and such Eligible Holders in connection with the
facts which resulted in such losses, liabilities, claims, damages, and
expenses. The relative fault, in the case of an untrue statement, alleged
untrue statement, omission, or alleged omission shall be determined by, among
other things, whether such statement, alleged statement, omission, or alleged
omission relates to information supplied by the Company or by such Eligible
Holders, and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement, alleged statement,
omission, or alleged omission. The Company and Eligible Holders agree that it
would be unjust and inequitable if the respective obligations of the
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Company and the Eligible Holders for contribution were determined by pro rata
or per capita allocation of the aggregate losses, liabilities, claims, damages,
and expenses (even if each Eligible Holder and the other indemnified parties
were treated as one entity for such purpose) or by any other method of
allocation that does not reflect the equitable considerations referred to in
this Section 2(c). In no case shall any Eligible Holder be responsible for a
portion of the contribution obligation imposed on all Eligible Holders in
excess of its pro rata share based on the number of shares of Common Stock
owned by him and included in such registration as compared to the number of
shares of Common Stock owned by all Eligible Holders and included in such
registration. No person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 2(c), each person, if any, who
controls any Eligible Holder within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act and each officer, director, partner,
employee, agent, and counsel of Eligible Holder or control person shall have
the same rights to contribution as such Eligible Holder or control person and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, each officer of the
Company who shall have signed any such registration statement, each director of
the Company, and its or their respective counsel shall have the same rights to
contribution as the Company, subject in each case to the provisions of this
Section 2(c). Anything in this Section 2(c) to the contrary notwithstanding,
no party shall be liable for contribution with respect to the settlement of any
claim or action effected without its written consent. This Section 2(c) is
intended to supersede any right to contribution under the Securities Act, the
Exchange Act or otherwise.
3. Blackouts. Each Stockholder agrees that upon receipt of
notice from MTLM (a "Blackout Notice") of: (i) any request by the Securities
and Exchange Commission (the "SEC") for amendment or supplement to a
registration statement or for additional information; (ii) the issuance by the
SEC of any stop order suspending the effectiveness of the registration
statement or initiating proceedings for that purpose; (iii) the receipt by MTLM
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the shares for sale or exchange in any
jurisdiction of the United States or initiating proceedings for that purpose;
(iv) the happening of any event that makes any statement of a material fact
made in the registration statement or prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue or requires revisions
to the registration statement or prospectus so that these documents will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made, not misleading; or
(v) the determination by MTLM that a post-effective amendment to the
registration statement, or supplement to the prospectus would be appropriate,
the Stockholder shall, or shall cause its permitted transferee to, immediately
discontinue disposition of the shares covered by the registration statement and
related prospectus until: (x) receipt by Stockholder of the supplemented or
amended prospectus or (y) notice from MTLM that use of the prospectus may be
resumed.
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4. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of
its obligations under this Agreement, each Stockholder, 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.
(b) Agreements and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, unless such amendment, modification or supplement is
in writing and signed by the parties hereto.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in accordance with the
provision of the Stockholders' Agreement.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of the Registrable Securities subject to the
terms hereof.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of references only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois without
reference to its conflicts of law provisions.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application hereof in any circumstance
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions contained herein shall not be affected or
impaired thereby.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of this agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises warranties or undertakings, other than those set forth
or referred to herein, concerning the registration rights granted by the
Company pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
METAL MANAGEMENT, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
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Title: CHIEF EXECUTIVE OFFICER
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/s/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
/s/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX
/s/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
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