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EXHIBIT 4.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"AGREEMENT") is made and entered into as of the 19th day of December, 1997, by
and between Metal Management, Inc., a Delaware corporation (the "COMPANY"), and
T. Xxxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx,
Xxxxxxx X. Xxxxx and Samstock, L.L.C., a Delaware limited liability company
(each a "STOCKHOLDER" and collectively the "STOCKHOLDERS").
RECITALS
A. The Stockholders and the Company are parties to that certain
Amended and Restated Stockholders' Agreement dated of even date herewith (the
"STOCKHOLDERS' AGREEMENT"), pursuant to which each Stockholder has agreed to
certain restrictions on the transfer of their shares of common stock, par value
$.01 per share of the Company (the "COMMON STOCK").
B. T. Xxxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx
X. Xxxxx, Xxxxxxx X. Xxxxx, together with the Corporation, entered into a
Registration Rights Agreement dated as of December 1, 1997 (the "ORIGINAL
REGISTRATION RIGHTS AGREEMENT").
C. Pursuant to that certain Securities Purchase Agreement (the
"SECURITIES PURCHASE AGREEMENT") dated as of December 19, 1997, by and between
the Corporation and Samstock, L.L.C., a Delaware limited liability company
(the "PURCHASER"), Purchaser acquired 1,470,588 shares of Common Stock and a
warrant to purchase an additional 600,000 shares of Common Stock.
D. The parties to the Original Registration Rights Agreement
desire to amend and restate the Original Registration Rights Agreement in its
entirety to, among other things, include Purchaser as a party to the Agreement.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree that the Original Registration
Rights Agreement is amended and restated in its entirety to read as follows:
1. (a) Piggyback Registration. If, at any time during the
five-year period commencing December 1, 1999, 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
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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 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) and (ii) the shares of Common
Stock for which the options and warrants listed on Schedule 1(a) are exercised,
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) Demand Registration. If, at any time during the
five-year period commencing December 1, 1999, the Company shall receive a
written request from Eligible Holders who in the aggregate own at least 25% of
the total number of shares of Common Stock then included (or upon such
exercises would be included) in the Registrable Securities (the "MAJORITY
HOLDERS"), to register the sale of all or part of such Registrable Securities,
the Company shall, as promptly as practicable, at the Company's sole cost and
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 the Eligible Holders), prepare and file with the
Commission a registration statement sufficient 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;
provided, however, that the Company shall only be obligated to file one such
registration statement; provided further, however, that if an undersigned
Eligible Holder does not offer to include any portion of its Registrable
Securities in the registration statement so prepared, then such Eligible Holder
shall be entitled to one separate demand covering all of his Registrable
Securities which have not been previously sold pursuant to Rule 144 under the
Securities Act. The Company shall not be obligated to effect any registration
of its securities pursuant to this Section 1(b) within nine months after the
effective date of a previous registration statement prepared and filed in
accordance with Section 1(a) or 1(b). Within three business days after
receiving any request contemplated by this Section 1(b), the Company shall give
written notice to all the other Eligible Holders, advising each of them that
the Company is proceeding with such registration and offering to include
therein all or any portion of any such other Eligible Holder's Registrable
Securities, provided that the Company receives a written request to do so from
such Eligible Holder within 30 days after receipt by him or it of the Company's
notice.
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(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 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(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 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.
(e) 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.
(f) 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 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(c).
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(g) 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.
(h) 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.
(i) 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.
(j) If requested by the underwriter for any underwritten
offering of Registrable Securities on behalf of an Eligible Holder of
Registrable Securities pursuant to a registration requested under Section 1(b),
the Company and such Eligible Holder of Registrable Securities will enter into
an underwriting agreement with such underwriter for such offering, which shall
be reasonably satisfactory in substance and form to the Company and the
Company's counsel, such Eligible Holder of Registrable Securities and the
underwriter, and such agreement shall contain such representations and
warranties by the Company and such Eligible Holder of Registrable Securities
and such other terms and provisions as are customarily contained in an
underwriting agreement with respect to secondary distributions solely by
selling stockholders, including, without limitation, indemnities substantially
to the effect and to the extent provided in Section 2 hereof.
2. Indemnification. (a) 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),
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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 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
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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 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), 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
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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 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. 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
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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.
By: /s/ T. Xxxxxxxx Xxxxxxxx
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T. Xxxxxxxx Xxxxxxxx, Chairman and
Chief Development Officer
/s/ T. Xxxxxxxx Xxxxxxxx
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T. XXXXXXXX XXXXXXXX
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
SAMSTOCK, L.L.C., a Delaware limited
liability company
By: SZ Investments, L.L.C., it managing
member
By: Xxxx General Partnership, Inc., its
managing member
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
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Title: Vice President
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