SECURITIES REPURCHASE AGREEMENT
Exhibit 10.24
THIS SECURITIES REPURCHASE AGREEMENT (this “Agreement”) is made as of November 30,
2006 by and among Horsehead Holding Corp., a Delaware corporation (the “Company”), each of
the holders of common stock of the Company, par value $0.01 per share (the “Common Stock”),
set forth in Exhibit A hereto (collectively, the “Sellers”).
(a) Concurrent with the execution of this Agreement, each Seller shall (to the extent such
certificates are not currently in the possession of Xxxxxxxx & Xxxxx LLP) deliver to the offices of
the Company’s attorneys, Xxxxxxxx & Xxxxx LLP, Attn: Xxxxx Xxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, the stock certificates representing the Shares to be sold by such Seller,
accompanied by duly executed a stock assignments in the form of Exhibit B attached hereto
(provided that such endorsements shall not be deemed effective until the Repurchase Effective Time
(as defined below)). The Company shall not be obligated to deliver the payment pursuant to
Sections 2(b) below or replacement securities pursuant to Section 4 below to a
Seller until such Seller shall have so delivered the stock certificates representing, immediately
prior to the Repurchase Effective Time, the Shares to be purchased from such Seller accompanied by
such duly executed assignments; provided that if any stock certificates representing, immediately
prior to the Repurchase Effective Time, the Shares to be sold by a Seller shall have been lost,
stolen or destroyed, upon (i) the making of an affidavit of that fact by the holder claiming such
stock certificate to be lost, stolen or destroyed, and (ii) if such holder is not an institutional
investor, the posting by such holder of a bond, if required by the Company, in such reasonable form
and amount as the Company shall require as indemnity against any claim that may be made against the
Company with respect to such stock certificate, then, for purposes of this Section 1, such
stock certificate shall be deemed to have been delivered to the Company. In the event that this
Agreement is terminated pursuant to Section 8, the Company shall return, or cause to be
returned, to each Seller any stock certificates that have been delivered by such Seller to the
Company pursuant to this Section 1.
2. Sale of Shares.
by such Seller and to be transferred hereunder in the amount set forth in Exhibit A hereto, and the Company
shall purchase from each Stock Seller, all of the right, title, and interest in and to the Shares
held by such Seller and to be repurchased from such Seller in the amount set forth in Exhibit A
hereto.
3. Shares Not Repurchased. In the event that less than all of the outstanding Shares
provided for by a certificate representing such Shares are sold pursuant to this Agreement, then
promptly after the Repurchase Effective Time (and after delivery of such share certificate in
accordance with Section 1) the Company shall issue to the holder of such Shares a new stock
of like tenor representing the Shares represented by the original certificates for the Shares but
not sold by such holder pursuant to this Agreement.
4. The Closing. The closing of the transactions contemplated hereby (the
“Closing”) shall take place at the offices of Xxxxxxxx & Xxxxx LLP in Chicago, Illinois at
the Repurchase Effective Time, or at such other place or on such other date as may be mutually
agreeable to the Sellers and the Company.
5. Representations and Warranties of the Seller. Each Seller, severally and not jointly,
hereby represents and warrants to the Company that:
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material adverse
effect on such Seller or its ability to perform its obligations hereunder. Such Seller has
full right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such
Seller hereunder.
6. Representations and Warranties of the Company. The Company hereby represents and
warrants to each of the Sellers that:
7. Termination. In the event that the Repurchase Effective Time has not occurred prior to
11:59 PM Eastern Time on January 31, 2007 (the “Termination Date”), then this Agreement
shall terminate automatically and the Company shall promptly thereafter return all certificates
representing Shares to the holders thereof. Upon termination, this Agreement will forthwith become
void and there will be no liability on the part of any party hereto to any other party hereto or
its stockholders or directors or officers in respect thereof, except that the provisions of this
Section 8 shall continue in full force and effect.
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(g) Choice of Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written
above.
HORSEHEAD HOLDING CORP. | ||||||
By: | /s/ Xxxxx X. Xxxxxxx | |||||
Name: | Xxxxx X. Xxxxxxx | |||||
Title: | President and CEO | |||||
SUN HORSEHEAD, LLC | ||||||
By: Name: |
/s/ Xxxxx Xxxxxxx
|
|||||
Title: | Vice President | |||||
XXXXXXXX STREET PARTNERS VI | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxxxxx | |||||
Title: | Managing Partner | |||||
XXXXXX XXXX | ||||||
/s/ Xxxxxx Xxxx | ||||||
XXXX XXXXXX | ||||||
/s/ Xxxx Xxxxxx | ||||||
XXXX XXXXXXXX | ||||||
/s/ Xxxx Xxxxxxxx | ||||||
Signature Page to Securities Repurchase Agreement
XXXXX XXXXX | ||||||
/s/ Xxxxx Xxxxx | ||||||
XXXXXXXX XXXXXX TRUST | ||||||
By: | /s/ Xxxxxx Xxxxxx | |||||
Name: | Xxxxxx Xxxxxx | |||||
Title: | Trustee | |||||
JLT INVESTMENTS LP | ||||||
By: | /s/ Xxxxxx Xxxxxx | |||||
Name: Title: |
Xxxxxx Xxxxxx General Partner |
|||||
GERMANTOWN VENTURES, LLC | ||||||
By: | /s/ Xxx X. Xxxxxx | |||||
Name: | Xxx X. Xxxxxx | |||||
Title: | Managing Member | |||||
XXXXXX XXXX | ||||||
/s/ Xxxxxx Xxxx | ||||||
XXXX XXXX | ||||||
/s/ Xxxx Xxxx | ||||||
XXXXX XXXX | ||||||
/s/ Xxxxx Xxxx | ||||||
Signature Page to Securities Repurchase Agreement
XXXX XXXXX | ||||||
/s/ Xxxx Xxxxx | ||||||
XXXX XXXX | ||||||
/s/ Xxxx Xxxx | ||||||
H.I.G. SUN CAPITAL PARTNERS, INC. | ||||||
By: | /s/ Xxxx Xxxxxxxx | |||||
Name: | Xxxx Xxxxxxxx | |||||
Title: | Co-President | |||||
IL VENTURE CAPITAL, LLC | ||||||
By: | /s/ Xxx X. Xxxxxx | |||||
Name: | Xxx X. Xxxxxx | |||||
Title: | Managing Member | |||||
XXXXXXXX XXXXXX | ||||||
/s/ Xxxxxxxx Xxxxxx | ||||||
XXXXX XXXXXX | ||||||
/s/ Xxxxx Xxxxxx | ||||||
Signature Page to Securities Repurchase Agreement
EXHIBIT A
HOLDERS OF SHARES
Number of Shares of | Shares to be Sold | |||||||
Sellers | Common Stock Held | Pursuant Hereto | ||||||
Sun Horsehead, LLC |
18,289,560 | 12,642,389 | ||||||
Xxxxxx Xxxx |
31,022 | 21,368 | ||||||
Xxxx Xxxxxx |
31,022 | 21,368 | ||||||
Xxxx Xxxxxxxx |
31,022 | 21,368 | ||||||
Xxxxx Xxxxx |
165,493 | 113,988 | ||||||
Xxxxxxxx Xxxxxx Trust |
51,724 | 35,626 | ||||||
JLT Investments LP |
51,724 | 35,626 | ||||||
Germantown Ventures, LLC |
258,581 | 178,103 | ||||||
IL Venture Capital, LLC |
413,734 | 284,968 | ||||||
Xxxxxx Xxxx |
103,428 | 71,239 | ||||||
Xxxx Xxxx and Xxxxx Xxxx |
103,428 | 71,239 | ||||||
Xxxxxxxx Xxxxxx |
36,193 | 20,675 | ||||||
Xxxx Xxxxx |
51,724 | 35,626 | ||||||
Xxxxx Xxxxxx |
36,193 | 20,675 | ||||||
Xxxxxxxx Street Partners VI |
199,630 | 105,977 | ||||||
Xxxxx Xxxx |
5,170 | 3,561 | ||||||
H.I.G. Sun Capital Partners, Inc. |
103,428 | 66,204 |
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
For transfers of Common Stock
(and appointment of attorney in fact)
For transfers of Common Stock
(and appointment of attorney in fact)
FOR VALUE RECEIVED, the undersigned, subject to the terms and conditions of the
Securities Repurchase Agreement dated as of November ___, 2006, does hereby sell, assign and
transfer unto Horsehead Holding Corp., a Delaware corporation (the “Company”), the number of shares
of Common Stock, par value $.01 per share, of the Company, standing in his or her or its name on
the books of said Company represented by the Certificate Number(s) set forth on Annex A attached
hereto, and does hereby irrevocably constitute and appoint the secretary of the Company attorney to
transfer the said stock on the books of the Company with full power of substitution in the
premises.
Dated: , 2006
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Annex A
Shares of | ||
Certificate Number | Common Stock | |