1
EXHIBIT 4.25
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and entered into
as of the 7th day of July, 1998, by and between Metal Management, Inc., a
Delaware corporation (the "COMPANY"), and X. Xxxxxxxxx & Sons, Inc., a Delaware
corporation ("STOCKHOLDER").
RECITALS:
A. Pursuant to the Asset Purchase Agreement dated as of July 7, 1998, by and
among the Company, Stockholder, Xxxxxxxxx Acquisition Corp. and the
stockholders of Stockholder named herein (the "PURCHASE AGREEMENT Stockholder
received from the Company shares of the Company's common stock, par value $.01
per share (the "COMMON STOCK"). All terms which are capitalized and used
without definition herein shall have the meanings ascribed to such terms in the
Asset Purchase Agreement.
B. As a condition to Stockholder agreeing to enter into the Asset Purchase
Agreement, Stockholder is being granted registration rights with respect to
650,000 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 360 day period
commencing on the Closing Date, the Company shall file a registration
statement on Form S-3, for transactions involving secondary offerings,
with the Securities and Exchange Commission (the "COMMISSION") while any
Registrable Securities (as hereinafter defined) are outstanding in the
name of the Stockholder, the Company shall give Stockholder, to the extent
it then holds any Registrable Securities (the "ELIGIBLE HOLDER") at least
30 days' prior written notice of the filing of such registration
statement. Unless the Eligible Holder notifies the Company in writing
within 20 days after receipt of any such notice to the contrary, the
Company shall, at the Company's sole expense (other than the fees and
disbursements of counsel for the Eligible Holder, any underwriting, fees,
brokerage fees or other selling expenses, payable in respect of the
Registrable Securities sold by any Eligible Holder), register all of the
Registrable Securities of Eligible Holder, concurrently with the
registration of such other securities, all to the extent requisite to
permit the resale 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. As used herein, "REGISTRABLE SECURITIES" shall mean the
shares of Common Stock owned by Stockholder, excluding any such shares
that a Stockholder shall have previously sold pursuant to a registrations
statement or Rule 144 promulgated under the Securities Act of 1933, as
amended (the "SECURITIES ACT").
1
2
(b) Mandatory Registration. On or before the date which is 180 days after
the Closing Date (the "FILING DEADLINE"), subject to extension as
described in Section l(i) below, the Company shall prepare and file at the
Company's sole cost and expense (other than the fees and disbursements of
counsel for the Eligible Holder, if any, payable in respect of the
Registrable Securities sold by the Eligible Holder) one registration
statement on Form S-3, for transactions involving secondary offerings. The
Company will use its best efforts through its officers, directors.
auditors, and counsel to cause such registration statement to become
effective as promptly as practicable following the filing thereof, but in
no event later than 90 days after the Closing Date.
(c) 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 holder 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 (c) in which it is not otherwise required to qualify to do
business.
(d) 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 Holder to complete the
offer and sale of the Registrable Securities covered thereby. The Company
shall not be required to keep any such registration or qualification in
effect with respect to any Registrable Securities that have been sold by
the Eligible Holder or that otherwise qualify for resale by the Eligible
Holder in accordance with Rule 144(k); provided, however, in no event
shall the Company be required to keep any such registration or
qualification in effect after July 7, 2001.
(e) In the event of a registration pursuant to the provisions of this
Section 1, the Company shall furnish to the 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 the Eligible Holder may reasonably request to facilitate the
disposition of the Registrable Securities included in such registration.
(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.
2
3
(g) The Company shall notify the Eligible Holder 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. The Company shall notify the Eligible Holder of
the Registrable Securities promptly of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing, and use its best efforts to promptly update and/or correct
such prospectus, provided, however, that the Company shall not be required
to update and/or correct such prospectus if, and so long as, the Board of
Directors of the Company determines in good faith that to do so at such
time would be detrimental to the business or prospects of the Company.
(h) The Company shall notify the Eligible Holder of the Registrable
Securities promptly (i) when such registration statement has become
effective or a supplement to any prospectus forming a part of such
registration statement has been filed, and (ii) of the issuance by the
Commission of any stop or other order suspending the effectiveness of the
registration statement. If at any time the Company shall receive any such
order, the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time; provided, however,
that the Company shall not be required to obtain the withdrawal or lifting
of such order if, and so long as, the Board of Directors of the Company
determines in good faith that to do so at such time would be detrimental
to the business or prospects of the Company.
(i) The Filing Deadline shall be extended by the number of days during (i)
any period in which the Company has been advised by its outside counsel
that the registration statement will not be accepted for filing by the
Commission as a result of the Company then having on file a registration
statement which has not yet gone effective or a proxy statement that is
then being reviewed by the Commission, and (ii) any period (a "STANDSTILL
PERIOD") in which the Board of Directors of the Company determines in good
faith (A) that an amendment or supplement to the registration statement or
prospectus contained therein is necessary in order to correct a material
misstatement made therein or to include information the absence of which
would render the registration statement or such prospectus materially
misleading and (B) that the disclosure of such information at such time
would be detrimental to the business or prospects of the Company.
(j) In connection with the registration of Registrable Securities pursuant
to a registration statement, the Eligible Holder shall (i) furnish to the
Company such information regarding itself and the intended method of
disposition of Registrable Securities as the Company shall reasonably
request in order to effect the registration thereof, and (ii) upon receipt
of any notice from the Company of the initiation of a Standstill Period,
immediately discontinue disposition of Registrable Securities pursuant to
the registration statement until receiving written notice from the Company
that the Standstill Period has terminated.
3
4
(k) Company shall use its best efforts to have the Registrable Securities
included for quotation on The Nasdaq National Market.
2. Indemnification. (a) Subject to the conditions set forth below, the Company
agrees to indemnify and hold harmless the 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 (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 the 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
4
5
promptly employed counsel reasonably satisfactory to such indemnified party or
parties, or such indemnified party or panics 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 Holder of the
commencement of any litigation or proceedings against the Company or any of it
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), 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)
5
6
(c) To provide for just and equitable contribution, (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 through 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 Holder 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 Holder 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 Holder, 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 Holder
agree that it would be unjust and inequitable if the respective
obligations of the Company and the Eligible Holder for contribution were
determined by pro rata or per capita allocation of the a 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 Holder 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 Holder 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 an,
claim or action effected without its written consent. This
6
7
Section 2(c) is intended to supersede any right to contribution under the
Securities Act, the Exchange Act or otherwise.
3. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its obligations
under this Agreement, 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
Purchase 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 Delaware 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
7
8
to herein, concerning the registration rights granted by the Company
pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first written above.
METAL MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
8
