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”).
WHEREAS, the Company has entered into a Purchase/Placement Agreement, dated as of November 20,
2006 (the “Purchase/Placement Agreement”), with Friedman, Billings, Xxxxxx & Co., Inc.
(“FBR”) pursuant to which the Company has agreed to sell, and FBR has agreed to purchase
from the Company or place on behalf of the Company, up to 13,750,000 shares of Common Stock (the
“Offering”), at a purchase price of $12.09 per share;
WHEREAS, concurrently with the closing of the Offering, each of the Sellers desires to sell to
the Company, and the Company desires to buy directly from each of the Sellers, an aggregate of
13,750,000 shares of Common Stock (the “Shares); and
WHEREAS, the sale of the Shares by the Sellers and the purchase of the Shares by the Company
is conditioned upon the closing of the Offering.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Delivery of Share Certificates
(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.
(a) Sale of the Shares. On the Closing Date, immediately following the closing of the
Offering (the “Repurchase Effective Time”), and upon the terms and conditions set forth in
this Agreement, each Stock Seller shall sell, transfer, and assign to the Company, the number of
Shares owned
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.
(b) Deliveries by the Company. On the Closing Date, the Company shall deliver to each
Seller, if such Seller has performed all of its obligations under Section 1 of this
Agreement in a manner reasonably satisfactory to the Company, a cashier’s check or wire transfer of
immediately available funds to a bank account designated by such Seller in writing to the Company
no later than three business days prior to the Repurchase Effective Time in an aggregate amount
equal to the product of (i) the number of Shares to be purchased from such Seller by the Company
and (ii) $12.09, representing payment in full for the Shares purchased from such Seller pursuant
hereto.
(c) Effect on Shares. As of the Repurchase Effective Time, the Shares purchased
hereby shall no longer be outstanding and shall automatically be cancelled and retired and shall
cease to exist, and each Seller shall cease to have any rights with respect thereto, other than the
right to receive the applicable payment payable in respect of such Seller’s Shares pursuant to
Section 2(b). Any certificate to the extent formerly representing Shares purchased hereby
shall, from and after the Repurchase Effective Time, solely represent the right to receive the
payment payable pursuant to Section 2(b).
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:
(a) Ownership. All of the Shares are owned of record and beneficially by such Seller,
and such Seller has good and marketable title to the Shares, free and clear of all security
interests, claims, liens, pledges, options, encumbrances, charges, agreements, voting trusts,
proxies, and other arrangements or restrictions whatsoever (“Encumbrances”), other than
pursuant to applicable securities laws and the Securityholders Agreement dated as of December 23,
2003 by and among the Company and its equityholders.
(b) Authorization; No Breach. The execution, delivery and performance of this
Agreement has been duly authorized by such Seller. This Agreement constitutes a valid and binding
obligation of such Seller, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws affecting
creditors’ rights generally and limitations on the availability of equitable remedies. The
execution and delivery by such Seller of this Agreement, and the fulfillment of and compliance with
the terms hereof by such Seller, do not and shall not conflict with or result in a breach of the
terms, conditions or provisions of, or require any authorization, consent, approval, exemption or
other action by or notice to any court or administrative or governmental body pursuant to, its
limited liability company operating agreement or any material law, statute, rule or regulation to
which such Seller is subject, or any material agreement, instrument, order, judgment or decree to
which such Seller is subject, except where any such condition would not have a
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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.
(c) Information. Such Seller has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the repurchase of Shares pursuant hereto and has had
full access to such other information concerning the Company and its subsidiaries as it has
requested. Such Seller has also been provided a copy of and reviewed the preliminary offering
memorandum dated October 30, 2006 related to the Offering.
6. Representations and Warranties of the Company. The Company hereby represents and
warrants to each of the Sellers that:
(a) Authorization; No Breach. The execution, delivery and performance of this
Agreement has been duly authorized by the Company. This Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws affecting
creditors’ rights generally and limitations on the availability of equitable remedies. The
execution and delivery by the Company of this Agreement, and the fulfillment of and compliance with
the respective terms hereof by the Company, do not and shall not conflict with or result in a
breach of the terms, conditions or provisions of, or require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or governmental body pursuant
to, its certificate of incorporation or bylaws or any material law, statute, rule or regulation to
which the Company is subject, or any material agreement, instrument, order, judgment or decree to
which the Company or any subsidiary is subject, except where any such condition would not have a
material adverse effect on the Company or its ability to perform its obligations hereunder.
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.
8. General Provisions.
(a) Survival of Representations. All representations and warranties contained herein
or made in writing by any party in connection herewith shall survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby, regardless of any
investigation made by a party or on its behalf.
(b) Expenses. The parties will each pay their own costs and expenses (including
attorneys’ fees and expenses) incurred in connection with the preparation, negotiation and
consummation of this Agreement and the transactions contemplated hereby.
(c) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
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(d) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall
bind and inure to the benefit of and be enforceable by any of the parties hereto and their
respective successors and assigns (including subsequent holders of Shares).
(f) Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this Agreement. The use of the
word “including” in this Agreement shall be by way of example rather than by limitation.
(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.
(h) WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND
UNCONDITIONALLY WAIVERS THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT
OF, CONNECTION WITH OR RELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS
OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.
(i) Remedies. Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs (including attorneys’ fees)
caused by any breach of any provision of this Agreement and to exercise all other rights existing
in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any party in its sole discretion
may apply to any court of competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
(j) Amendment and Waiver. The provisions of this Agreement may be amended and waived
only with the prior written consent of the parties hereto.
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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
|
Annex A
| Shares of | ||
| Certificate Number | Common Stock | |
