SECURITIES REPURCHASE
AGREEMENT
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, Ramsey & 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
Kirkland & Ellis LLP) deliver to the offices of the
Company’s attorneys, Kirkland & Ellis LLP, Attn: Steve
Toth, 200 East Randolph Drive, Chicago, Illinois 60601, 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 .
(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 Kirkland & Ellis
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
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