1
EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of the 23rd day of June, 1997, by and between Metal Management,
Inc., a Delaware corporation ("MTLM"), and the Xxxxxx X. Xxxxx, III Second
Revocable Trust (the "Holder").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Purchase Agreement and Plan of Merger
(the "Purchase Agreement") dated as of June __, 1997, by and among MTLM, Xxxxx
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
MTLM, The Xxxxx Corporation ("Xxxxx"), Ferrex Trading Corporation ("Ferrex"),
Paulding Recycling, Inc. ("Paulding"), Briquetting Corporation of America
("Briquetting"), all Ohio corporations (Xxxxx, Ferrex, Paulding and Briquetting
being sometimes hereinafter referred to collectively as the "Companies and
individually as a "Company") and all of the shareholders of the Companies,
Holder, a shareholder of the Companies, has agreed to acquire from MTLM 540,856
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of MTLM in consideration for the merger of Ferrex with Xxxxx
Acquisition Corporation. Capitalized terms used, but not defined herein, have
the same meaning as in the Purchase Agreement.
WHEREAS, as additional consideration for the purchase of the Shares by
the Holder, MTLM desires to grant to the Holder registration rights with respect
to the Shares;
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 and regardless of any prior availability of
rights under this Section 1(a), MTLM 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, MTLM shall give all the
then holders of any Registrable Securities (the "Eligible Holders") at least 30
days' prior written notice of the filing of such registration statement,
including the proposed terms thereof. If requested by an Eligible Holder in
writing within 20 days after receipt of any such notice, MTLM shall, at MTLM'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 (including in any
underwritten offering) through the facilities of all securities exchanges or
over-the-counter markets, if any, on which MTLM's Common Stock is then listed,
registered, traded or sold, will use its best efforts through its officers,
directors, auditors,
2
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 MTLM 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 MTLM would materially adversely affect the distribution of such securities by
MTLM 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, provided that no such delay
shall be required as to any Registrable Securities if any securities of MTLM are
included in such registration statement and eligible for sale during the Delay
Period for the account of any person other than MTLM and any Eligible Holder
unless the securities included in such registration statement and eligible for
sale during the Delay Period for such other person shall have been reduced pro
rata to the reduction of the Registrable Securities which were requested to be
included and eligible for sale during the Delay Period in such registration. As
used herein, "Registrable Securities" shall mean the shares of Common Stock
issued or issuable by MTLM pursuant to the Purchase Agreement, the Additional
Shares issuable pursuant to Section 6.21 of the Purchase Agreement, the shares
of Common Stock issuable upon the conversion of the 462,500 Warrants issued
pursuant to the Purchase Agreement and the shares of Common Stock issuable upon
the conversion of the Warrants issuable under the Downpayment Notes which, in
each case, 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, 1997, MTLM shall receive a written request from
Eligible Holders who in the aggregate own at least 50% 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, MTLM shall, as promptly as
practicable, and in any event not later than 45 days after such request, at
MTLM'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 securities exchanges or over-the-counter markets, if any, on which MTLM's
Common Stock is then listed, registered, traded or sold, 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 MTLM shall only be obligated to file one such registration
statement. MTLM 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), MTLM shall give written notice to all the
other Eligible Holders, advising each of them that MTLM is proceeding with such
registration and offering to include therein all or any portion of any such
other
2
3
Eligible Holder's Registrable Securities, provided that MTLM receives a written
request to do so from such Eligible Holder within 30 days after receipt by him
or it of MTLM's notice.
(c) In the event of a registration pursuant to the provisions
of this Section 1, MTLM shall use its best efforts to cause the Registrable
Securities so registered to be listed, registered or qualified for sale on any
securities exchange or over-the-counter market on which MTLM's Common Stock is
then listed, registered, traded or sold and under the securities or blue sky
laws of such jurisdictions as the Eligible Holders may reasonably request;
provided, however, that MTLM 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) MTLM shall comply with the Securities Act and those blue
sky laws contemplated under Section 1(c), 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. MTLM 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 MTLM
is required to keep any such registration or qualification in effect with
respect to securities other than the Registrable Securities beyond such period,
MTLM 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, MTLM 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, and MTLM shall take all such other actions as may reasonably be
required, 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, MTLM 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
3
4
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).
(g) In the event of a registration pursuant to the provisions
of this Section 1, MTLM agrees to take such steps as may be necessary or
appropriate to effect, on the closing date of any sale of Registrable Securities
pursuant to a registration statement, the delivery of certificates evidencing
such Registrable Securities, registered in such names and denominations as the
Eligible Holders may request.
(h) MTLM 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
in accordance with Rule 144(c) to permit holders of the Registrable Securities
to sell such securities under Rule 144.
(i) MTLM shall notify the Eligible Holders 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 (i) of the issuance by the Commission of any stop or other order
suspending the effectiveness of the registration statement, or any order issued
by any state securities commission or other regulatory authority suspending the
qualification or exemption from qualification of such Registrable Securities
under state securities or "blue sky" laws. If at any time MTLM shall receive any
such order, MTLM shall use its best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time.
(j) MTLM 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 1933, as amended (the
"Securities Act"), of the happening of any event or existence of any fact as a
result of which the prospectus included in such registration statement, or any
amendment or supplement thereto, 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.
(k) 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
4
5
requested under Section 1(b), MTLM 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
MTLM and MTLM's counsel, such Eligible Holder of Registrable Securities and the
underwriter, and such agreement shall contain such representations and
warranties by MTLM 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, MTLM
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 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 MTLM or based upon written
information furnished by or on behalf of MTLM 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 MTLM 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 MTLM contained in this Agreement. The foregoing agreement to
indemnify shall be in addition to any liability MTLM 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 MTLM pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify MTLM in writing of the
institution of such action (but the failure so to notify shall not relieve MTLM
from any liability other than pursuant to this Section 2(a)) and MTLM shall
promptly assume the defense of such action,
5
6
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 MTLM in
connection with the defense of such action or MTLM 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 MTLM, in
any of which events such fees and expenses shall be borne by MTLM and MTLM 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, MTLM shall not be liable for any settlement of any such claim
or action effected without its written consent, which shall not be unreasonably
withheld. MTLM 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. MTLM agrees promptly to notify Eligible Holders of
the commencement of any litigation or proceedings against MTLM 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
MTLM, each director of MTLM, each officer of MTLM who shall have signed any
registration statement covering Registrable Securities held by such Eligible
Holder, each other person, if any, who controls MTLM within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, and its or their
respective counsel, to the same extent as the foregoing indemnity from MTLM 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 MTLM 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 MTLM 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 MTLM, and MTLM and each other person so indemnified shall have
the rights and duties given to the indemnified parties, by the provisions of
Section 2(a).
6
7
(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
MTLM (including for this purpose any contribution made by or on behalf of any
director of MTLM, any officer of MTLM who signed any such registration
statement, any controlling person of MTLM, 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 MTLM 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 MTLM 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. MTLM and Eligible Holders agree that it would be unjust and
inequitable if the respective obligations of MTLM 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 or it 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 MTLM within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, each officer of MTLM who shall have signed any such registration statement,
each director of MTLM, and its or their respective counsel shall have the same
rights to contribution as MTLM, 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.
7
8
(a) Remedies. In the event of a breach by MTLM of its
obligations under this Agreement, each Holder, 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 writing by hand-delivery, registered
first-class mail, telex, or telecopies, initially to the address set forth
below, and thereafter at such other address, notice of which is given in
accordance with the provisions of this of this Section 3(c):
(i) If to MTLM:
Metal Management, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
with a copy to:
Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
(ii) If to the Holder:
Xxxxxxx X. Xxxxx
000 X'Xxxxxxxx Xxxxx
Penthouse J
Xxxxxxxx Xxx, Xxxxxxx 00000
and
L. A. Isaac
0000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxx 00000
8
9
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged, if telecopied.
(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 Shares 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 other 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 MTLM
pursuant to this Agreement.
9
10
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. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
XXXXXX X. XXXXX, III, TRUSTEE UNDER
THE XXXXXX X. XXXXX, III SECOND
REVOCABLE TRUST
10
