SECURITIES REPURCHASE
AGREEMENT
THIS SECURITIES REPURCHASE AGREEMENT (this “
Agreement ”) is made as of April 12, 2007 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-1 hereto (collectively, the
“ Stock Sellers ”) and each of the holders of
warrants which provide for the right to purchase Common Stock set
forth in Exhibit A-2 hereto (collectively, the “
Warrant Sellers ” and, together with the Stock
Sellers, the “ Sellers ”).
WHEREAS , the Company has entered into a Purchase/Placement
Agreement, dated as of April 4, 2007 (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, 12,151,184 shares of Common Stock (the “
Offering ”), at a purchase price of $13.50 per
share;
WHEREAS, the proceeds from the Company’s sale of its
Common Stock in the Offering will be placed into an escrow account
until the application of the proceeds of the Offering has been
approved by the U.S. Federal Energy Regulatory Commission (“
FERC ”), and following such approval, the proceeds
will be released to the Company (the “ Proceed Release
”);
WHEREAS , the Stock Sellers desires to sell to the Company,
and the Company desires to buy directly from the Stock Sellers, an
aggregate of 6,213,076 shares of Common Stock (the “
Shares ”), and the Warrant Sellers desire to sell to
the Company, and the Company desires to buy directly from the
Warrant Sellers, warrants to purchase an aggregate of 5,938,108
shares of Common Stock (the “ Warrants ” and,
together with the Shares, the “ Repurchased Securities
”); and
WHEREAS , the sale of the Repurchased Securities by the
Sellers and the purchase of the Purchased Securities by the Company
is conditioned upon the closing of the Offering and the Proceed
Release.
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 and Warrants
(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 and/or warrant certificates representing the
Repurchased Securities to be sold by such Seller, accompanied by
duly executed a stock assignments in the form of
Exhibit B attached hereto and duly executed warrant
assignments in the form of Exhibit C 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) or 3(b) below or replacement
securities pursuant to Section 4 below to a Seller
until such Seller shall have so delivered the stock certificates
and/or warrant certificates representing, immediately prior to the
Repurchase Effective Time, the Repurchased Securities to be
purchased from such Seller accompanied by such duly executed
assignments; provided that if any stock certificates and/or warrant
certificates representing, immediately prior to the Repurchase
Effective Time, the Repurchased Securities 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 and/or warrant 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 and/or warrant certificate, then, for purposes of this
Section 1 , such stock certificate and/or warrant
certificate shall be deemed to have been delivered to the Company.
In the event that this Agreement is terminated pursuant to
Section 7 , the Company shall return, or cause to be
returned, to each Seller any stock certificates or warrant
certificates that have been delivered by such Seller to the Company
pursuant to this Section 1 .
(a)
Sale of the Shares . At 12:00 P.M. Eastern Standard
Time (the “ Repurchase Effective Time ”) on the
date following the Proceed Release (the “ Closing Date
”), and upon the terms and conditions set forth in this
Agreement, each Stock Seller shall sell, transfer, and assign to
the Company, the Shares owned by such Stock Seller, and the Company
shall purchase from each Stock Seller, all of the right, title, and
interest in and to the Shares held by such Stock Seller.
(b)
Deliveries by the Company . On the Closing Date, the Company
shall deliver to each Stock Seller, if such Stock 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 Stock Seller in writing
to the Company no later than three business days prior to the
Closing Date in an aggregate amount equal to the product of
(i) the number of Shares to be purchased from such Stock
Seller by the Company and (ii) 12.555, representing payment in
full for the Shares purchased from such Stock 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 Stock Seller shall cease to have any rights with respect
thereto, other than the right to receive the applicable payment
payable in respect of such Stock 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)
.
(a)
Sale of the Warrants . On the Closing Date, and upon the
terms and conditions set forth in this Agreement, each Warrant
Seller shall sell, transfer, and assign to the Company, the
Warrants held by such Warrant Seller, and the Company shall
purchase from each Warrant Seller, all of the right, title, and
interest in and to the Warrants held by such Warrant
Seller.
(b)
Deliveries by the Company . On the Closing Date, the Company
shall deliver to each Warrant Seller, if such Warrant 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 Warrant Seller in
writing to the Company no later than three business days prior to
the Closing Date in an aggregate amount equal to (i) the
product of (A) the number of shares of Common Stock that such
Warrant Seller’s Warrants purchased hereby entitle such
person to purchase, and (B) 12.555, minus (ii) the
aggregate exercise prices for the shares of Common Stock issuable
upon exercise of the Warrants to be purchased hereby held by such
Warrant Seller, representing payment in full for the Warrants
purchased from such Warrant Seller pursuant hereto.
2
(c)
Effect of the Transaction . As of the Repurchase Effective
Time, the Warrants purchased hereby shall no longer be outstanding
and shall automatically be cancelled and terminated and shall cease
to exist, and each Warrant Seller shall cease to have any rights
with respect thereto, other than the right to receive the payment
payable in respect of such Warrant Seller’s Warrants pursuant
to Section 3(b) . Any warrant certificate, to the
extent formerly representing any Warrant purchased hereby shall,
from and after the Repurchase Effective Time, solely represent the
right to receive the payment payable pursuant to
Section 3(b) .
4. The
Closing . The closing of the transactions
contemplat
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