EX-4.2



 





Exhibit 4.2




AMENDED AND RESTATED REGISTRATION AGREEMENT




     THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this “Agreement”) is made as of
November 30, 2006, by and among Horsehead Holding Corp., a Delaware corporation (the
“Company”), Sun Horsehead, LLC, a Delaware limited liability company (“Sun”), and
each Person whose name appears on the signature page hereto or who otherwise hereafter becomes a
party to this Agreement (collectively, the “Other Investors”). Sun and the Other Investors
are collectively referred to herein as the “Shareholders,” and are individually referred to
herein as a “Shareholder.” Otherwise undefined capitalized terms used herein are defined in
Section 9 hereof.



     WHEREAS, On December 23, 2003, the Company and certain of its equityholders entered into a
Registration Agreement (the “Original Agreement”);



     WHEREAS, on November 20, the Company and Friedman, Billings, Ramsey & Co., Inc.
(“FBR”) entered into a Purchase/Placement Agreement (the “Purchase/Placement
Agreement”), pursuant to which the Company agreed to sell, and FBR agreed to purchase and/or
place on our behalf, 25,901,192 shares of the Company’s common stock (the “Offering”);



     WHEREAS, in connection with the Offering, the Company and FBR are entering into a Registration
Rights Agreement (the “FBR Registration Agreement”) dated the date hereof, pursuant to
which purchasers of shares of the Company’s common stock in the Offering and their direct and
indirect transferees (the “New Investors”) shall be entitled to certain registration
rights; and



     WHEREAS, the parties hereto desire to amend and restate the Original Agreement in its entirety
to provide certain rights to the New Investors in respect of their purchases of Common Stock of the
Company and the registration rights given by the Company pursuant to the FBR Registration
Agreement.



     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
to this Agreement hereby agree as follows:



     1. Demand Registrations.



     (a) Requests for Registration. At any time, the holders of at least a majority of the
Sun Registrable Securities may request registration under the Securities Act of all or any portion
of such Sun Registrable Securities on Form S-l or any similar long-form registration statement
(“Long-Form Registrations”) or, if available, on Form S-2 or S-3 or any similar short-form
registration statement (“Short-Form Registrations”). All registrations requested pursuant
to this Section 1(a) are referred to herein as “Demand Registrations.” Each request
for a Demand Registration shall specify the approximate number of Registrable Securities requested
to be registered and the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such requested registration
to all other holders of Registrable Securities and FBR Registrable Shares and, subject to
Section l(d) below, will include in such registration, in addition to the Sun Registrable
Securities that are requested to be registered pursuant hereto, all Other Registrable Securities
and FBR Registrable



 









 




Shares with respect to which the Company has received written requests for inclusion therein
within 15 days after the receipt of the Company’s notice.




     (b) Long-Form Registrations. The holders of a majority of the Sun Registrable
Securities shall be entitled to request unlimited Long-Form Registrations in which the Company will
pay all Registration Expenses (as defined below in Section 5). All Long-Form Registrations
shall be underwritten registrations.



     (c) Short-Form Registrations. In addition to the Long-Form Registrations provided
pursuant to Section 1 (b), the holders of a majority of the Sun Registrable Securities
shall be entitled to request an unlimited number of Short-Form Registrations in which the Company
will pay all Registration Expenses. Demand Registrations will be Short-Form Registrations whenever
the Company is permitted to use any applicable short form. All Short-Form Registrations shall be
underwritten registrations, unless otherwise agreed to by the Company.



     (d) Priority on Demand Registrations. The Company will not include in any Demand
Registration any securities which are not Registrable Securities or FBR Registrable Shares without
the prior written consent of the holders of a majority of the Registrable Securities included in
such registration. If a Demand Registration is an underwritten offering and the managing
underwriters advise the Company in writing that, in their opinion, the number of Registrable
Securities and, if permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which can be sold
therein without adversely affecting the marketability of the offering, the Company will include in
such registration (i) first, the number of Registrable Securities requested to be included in such
registration which in the opinion of such underwriters can be sold without adverse effect, pro rata
among the respective holders thereof on the basis of the number of Registrable Securities owned by
each such holder, and (ii) second, other securities requested to be included in such Demand
Registration, including FBR Registrable Shares, if any, pro rata among the holders of such
securities on the basis of the number of such securities owned by each such holder.



     (e) Restrictions on Demand Registrations. The Company may postpone, for up to six
months (from the date of the request), the filing or the effectiveness of a registration statement
for a Demand Registration if the Company’s board of directors believes, in good faith, that such
Demand Registration would reasonably be expected to have an adverse effect on any proposal or plan
by the Company or any Subsidiary thereof to engage in any acquisition of assets (other than in the
ordinary course of business) or any stock purchase, merger, consolidation, tender offer,
reorganization, or similar transaction; provided, however, that in any such event, the holders of
Registrable Securities initially requesting such Demand Registration will be entitled to withdraw
such request and, if such request is withdrawn, such Demand Registration shall be treated as if it
had never been made in the first instance, and the Company will pay all Registration Expenses in
connection with such registration. The Company may delay a Demand Registration hereunder only once
in any 12-month period.



     (f) Selection of Underwriters. The holders of a majority of the Registrable Securities
initially requesting registration hereunder will have the right to select the investment



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banker(s) and manager(s) to administer the offering under such Demand Registration, subject to
the Company’s approval, which will not be unreasonably withheld.




     (g) Other Registration Rights. Except as provided in this Agreement, the Company will
not grant to any Persons the right to request that the Company register any equity securities of
the Company, or any securities convertible into or exchangeable or exercisable for any such
securities, without the prior written consent of the holders of at least a majority of the
Registrable Securities.



     2. Piggyback Registrations.



     (a) Right to Piggyback. Whenever the Company proposes to register any of its equity
securities under the Securities Act (other than pursuant to a Demand Registration or a registration
on Form S-4 or S-8 or any successor or similar forms) and the registration form to be used may be
used for the registration of Registrable Securities (a “Piggyback Registration”), whether
or not for sale for its own account, the Company will give prompt written notice to all holders of
Registrable Securities and FBR Registrable Shares of its intention to effect such a registration
and, subject to Sections 2(c) and 2(d) below, will include in such registration all
Registrable Securities and FBR Registrable Shares with respect to which the Company has received
written requests for inclusion therein within 10 days after the receipt of the Company’s notice.



     (b) Piggyback Expenses. In all Piggyback Registrations, the Registration Expenses of
the holders of Registrable Securities will be paid by the Company. The Registration Expenses of
the New Investors will be paid as set forth in the FBR Registration Agreement.



     (c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing (with a copy to each party hereto requesting registration of Registrable Securities) that,
in their opinion, the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without adversely affecting the marketability,
proposed offering price, timing, distribution method or probability of success of the offering,
then the Company will include in such registration (i) first, the securities that the Company
proposes to sell, (ii) second, the FBR Registrable Shares and the Registrable Securities requested
to be included in such registration, pro rata among the holders thereof on the basis of the number
of FBR Registrable Shares and Registrable Securities owned by each such holder, and (iii) third,
other securities requested to be included in such registration pro rata among the holders of such
securities on the basis of the number of such other securities owned by each such holder.



     (d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities (it being
understood that secondary registrations on behalf of holders of Registrable Securities are
addressed in Section 1 above rather than in this Section 2(d)), and the managing
underwriters advise the Company in writing that, in their opinion, the number of securities
requested to be included in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the Company will include in such



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registration (i) first, the securities requested to be included therein by the holders
requesting such registration, (ii) second, the FBR Registrable Shares and the Registrable
Securities requested to be included in such registration, pro rata among the holders thereof on the
basis of the number of FBR Registrable Shares and Registrable Securities owned by each such
requesting holder, and (iii) third, other securities requested to be included in such registration
pro rata among the holders of such other securities on the basis of the number of such securities
owned by each such holder.




     (e) Selection of Underwriters. If any Piggyback Registration is an underwritten
offering, the selection of the investment banker(s) and manager(s) for the offering shall be made
at the Company’s sole discretion.



     (f) Withdrawal by Company. If, at any time after giving notice of its intention to
register any of its securities as set forth in Section 2(a) and before the effective date
of such registration statement filed in connection with such registration, the Company shall
determine, for any reason, not to register such securities, the Company may, at its sole
discretion, give written notice of such determination to each holder of Registrable Securities and
FBR Registrable Shares and thereupon shall be relieved of its obligation to register any
Registrable Securities and FBR Registrable Shares in connection with such registration (but not
from its obligation to pay the Registration Expenses in connection therewith as provided herein).



     3. Holdback Agreements. Each holder of Registrable Securities agrees not to effect
any public sale or distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities, options, or rights convertible into or exchangeable or exercisable for
such securities, during the seven days before and the 180-day period (or such shorter period as may
be agreed to by the underwriters managing such offering) beginning on the effective date of any
underwritten public offering of the Company’s equity securities (including Demand and Piggyback
Registrations but excluding the shelf registration required by the FBR Registration Agreement)
(except as part of such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree, and agrees to enter into customary lock-up agreements with the
underwriters in such a registered public offering.



     4. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof and, pursuant thereto, the Company will
as expeditiously as possible:



     (a) prepare and (within 60 days after the end of the period within which requests for
registration may be given to the Company) file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and FBR Registrable Shares, if
any, and thereafter use its best efforts to cause such registration statement to become effective
(provided that, before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the holders of a majority
of the Registrable Securities covered by such registration statement copies of all such documents
proposed to be filed, which documents will be subject to review of such counsel);



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     (b) prepare and file with the Securities and Exchange Commission such amendments and
supplements to such registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective for a period of either (i) not less than
six months (subject to extension pursuant to Section 7(b)) or, if such registration
statement relates to an underwritten offering, such longer period as in the opinion of counsel for
the underwriters a prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer, or (ii) such shorter period as will terminate
when all of the securities coveted by such registration statement during such period have been
disposed of in accordance with the intended methods of disposition by the seller or sellers thereof
set forth in such registration statement (but, in any event, not before the expiration of any
longer period required under the Securities Act), and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in such registration
statement;



     (c) furnish to each seller of Registrable Securities and FBR Registrable Shares, if any, such
number of copies of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary prospectus), and
such other documents as such seller may reasonably request in order to facilitate the disposition
of the Registrable Securities and FBR Registrable Shares, if any, owned by such seller;



     (d) use its best efforts to register or qualify such Registrable Securities and FBR
Registrable Shares, if any, under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of
the Registrable Securities and FBR Registrable Shares, if any, owned by such seller (provided that
the Company will not be required to (i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);



     (e) notify each seller of such Registrable Securities and FBR Registrable Shares, if any, at
any time when a prospectus relating thereto is required to be delivered under the Securities Act,
upon discovery that, or upon the discovery of the happening of any event as a result of which, the
prospectus included in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such seller, the Company will
prepare and furnish to such seller a reasonable number of copies of a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities
and FBR Registrable Shares, if any, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein not misleading in
the light of the circumstances under which they were made;



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     (f) use best efforts to cause all such Registrable Securities and FBR Registrable Shares, if
any, to be listed on each securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on a securities exchange or the National
Association of Securities Dealers (“NASD”) automated quotation system and, if listed on the
NASD automated quotation system, use its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a “national market system security” of the
Nasdaq Stock Market within the meaning of Rule l1Aa2-1 of the Securities and Exchange Commission
or, failing that, to secure The Nasdaq Stock Market’s authorization for such Registrable Securities
and. without limiting the generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities and FBR Registrable Shares, if any,
with the NASD;



     (g) use best efforts to provide a transfer agent and registrar for all such Registrable
Securities and FBR Registrable Shares, if any, not later than the effective date of such
registration statement;



     (h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities and FBR Registrable Shares, if any (including, without
limitation, effecting a stock split, combination of shares, recapitalization, or reorganization);



     (i) make available for inspection by any seller of Registrable Securities and FBR Registrable
Shares, if any, any underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant, or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate and business documents and properties of the
Company as shall be necessary to enable them to exercise their due diligence responsibility, and
cause the Company’s officers, directors, employees, agents, representatives, and independent
accountants to supply all such information reasonably requested by any such seller, underwriter,
attorney, accountant, or agent in connection with such registration statement;



     (j) otherwise use its best efforts to comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least 12 months, beginning
with the first day of the Company’s first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder,



     (k) permit any holder of Registrable Securities and FBR Registrable Shares, if any, which
holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company to participate in the preparation of such registration or comparable
statement and to require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be included;



     (l) in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any related



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prospectus or suspending the qualification of any securities included in such registration
statement for sale in any jurisdiction, the Company will use its reasonable best efforts promptly
to obtain the withdrawal of such order;




     (m) use its reasonable best efforts to cause such Registrable Securities and FBR Registrable
Shares, if any, covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the sellers thereof to
consummate the disposition of such Registrable Securities and FBR Registrable Shares, if any;



     (n) use best efforts to obtain a cold comfort letter from the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by cold
comfort letters, which letter shall be addressed to the underwriters, and the Company shall use its
reasonable best efforts to cause such cold comfort letter to also be addressed to the holders of
such Registrable Securities; and



     (o) use best efforts to obtain an opinion from the Company’s outside counsel in customary form
and covering such matters of the type customarily covered by such opinions, which opinion shall be
addressed to the underwriters and the holders of such Registrable Securities.


If any such registration or comparable statement refers to any holder by name or otherwise as the
holder of any securities of the Company and if such holder, in its sole and exclusive judgment, is
or might be deemed to be an underwriter or a controlling person of the Company, such holder shall
have the right to require (i) the insertion therein of language, in form and substance satisfactory
to such holder and presented to the Company in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such holder of the
investment quality of the Company’s securities covered thereby, and that such holding does not
imply that such holder shall assist in meeting any future financial requirements of the Company, or
(ii) in the event that such reference to such holder by name or otherwise is not required by the
Securities Act or any similar federal or state statute then in force, the deletion of the reference
to such holder; provided that, with respect to this clause (ii), such holder shall furnish to the
Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Company. The Company may require each seller of Registrable Securities and FBR
Registrable Shares, if any, as to which any registration is being effected to furnish the Company
with such information regarding such seller and the distribution of such securities as the Company
may from time to time reasonably request in writing.




     5. Registration Expenses.



     (a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, fees and disbursements of counsel for the Company, and all independent
certified public accountants, underwriters (excluding discounts and commissions), and other Persons
retained by the Company (all such expenses being herein called “Registration Expenses”),
will be borne as provided in this Agreement,



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except that the Company will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of any liability
insurance, and the expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or, if none are so
listed, on a securities exchange or the NASD automated quotation system. The Company shall have no
obligation to pay an underwriting discounts or selling commissions attributable to the Registrable
Securities being sold by the holders thereof, which underwriting discounts or selling commissions
shall be borne by such holders.




     (b) In connection with each Demand Registration and each Piggyback Registration, the Company
shall reimburse the holders of Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration.



     (c) To the extent Registration Expenses are not required to be paid by the Company, each
holder of securities included in any registration hereunder will pay those Registration Expenses
allocable to the registration of such holder’s securities so included, and any Registration
Expenses not so allocable will be borne by all sellers of securities included in such registration
in proportion to the aggregate selling price of each seller’s securities to be so registered.



     6. Indemnification.



     (a) The Company agrees to indemnify and hold harmless, to the full extent permitted by law,
each holder of Registrable Securities, its officers, directors, members, agents, and employees and
each Person who controls such holder (within the meaning of the Securities Act) against any and all
losses, claims, damages, liabilities, joint or several, together with reasonable costs and expenses
(including reasonable attorney’s fees), to which such indemnified party may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, are
based upon, are caused by, or result from (i) any untrue or alleged untrue statement of material
fact contained (A) in any registration statement, prospectus, or preliminary prospectus or any
amendment thereof or supplement thereto, or (B) in any application or other document or
communication (in this Section 6 collectively called an “application”) executed by
or on behalf of the Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by such registration
statement under the “blue sky” or securities laws thereof, or (ii) any omission or alleged omission
of a material fact required to be stated therein or necessary to make the statements therein not
misleading, and the Company will reimburse such holder and each such director, officer, member,
agent and employee for any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action, or proceeding; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereto), or expense arises out of, is
based upon, is caused by, or results from an untrue statement or alleged untrue statement, or
omission or alleged omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement



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thereto, or in any application, in reliance upon, and in conformity with, written information
prepared and furnished to the Company by such holder or other indemnified party expressly for use
therein or by such holder’s failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with any underwritten offering, the Company
will indemnify such underwriters, their officers and directors, and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.




     (b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the full extent permitted by law, will indemnify and hold harmless
the other holders of Registrable Securities and the Company, and their respective directors,
officers, members, agents, and employees and each other Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities, joint or several,
together with reasonable costs and expenses (including reasonable attorney’s fees), to which such
indemnified party may become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of, are based upon, are caused by, or result from (i) any untrue or
alleged untrue statement of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or in any application, or
(ii) any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such untrue statement or
omission is made in such registration statement, any such prospectus or preliminary prospectus or
any amendment or supplement thereto, or in any application, in reliance upon and in conformity with
written information prepared and furnished to the Company by such holder expressly for use therein;
provided, however, that the obligation to indemnify will be individual to each holder and will be
limited to the net amount of proceeds received by such holder nom the sale of Registrable
Securities pursuant to such registration statement.



     (c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification (provided that
the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party), and (ii) unless in such
indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a
claim will not be obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of



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interest may exist between such indemnified party and any other of such indemnified parties
with respect to such claim.




     (d) The indemnifying party shall not, except with the approval of each indemnified party,
consent to entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a
release from all liability in respect to such claim or litigation without any payment or
consideration provided by such indemnified party.



     (e) If the indemnification provided for in this Section 6 is unavailable to, or is
insufficient to hold harmless, an indemnified party under the provisions above in respect to any
losses, claims, damages, or liabilities referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the sellers of Registrable Securities and any
other sellers participating in the registration statement on the other hand from the sale of
Registrable Securities pursuant to the registered offering of securities as to which indemnity is
sought, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand and of the sellers of
Registrable Securities and any other sellers participating in the registration statement on the
other hand in connection with the registration statement on the other in connection with the
statement or omissions which resulted in such losses, claims, damages, or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other hand shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) to the Company bear to the total net
proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and
any other sellers participating in the registration statement. The relative fault of the Company on
the one hand and of the sellers of Registrable Securities and any other sellers participating in
the registration statement on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities or other sellers participating
in the registration statement and the parties’ relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.



     (f) The Company and the sellers of Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the sellers of Registrable Securities were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 6 no
seller of Registrable Securities shall be required to contribute any amount in excess of the net
proceeds received by such seller from the sale of Registrable Securities covered by the



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registration statement filed pursuant hereto. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.




     (g) The indemnification and contribution by any such party provided for under this Agreement
shall be in addition to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and will remain in full force and effect regardless of
any investigation made or omitted by or on behalf of the indemnified party or any officer,
director, employee or controlling Person of such indemnified party and will survive the transfer of
securities.



     7. Participation in Underwritten Registrations.



     (a) No Person may participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements
(including, without limitation, pursuant to the terms of any over allotment or “green shoe” option
requested by the managing underwriter(s); provided that no holder of Registrable Securities will be
required to sell more than the number of Registrable Securities that such holder has requested the
Company to include in any registration), and (ii) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements, and other documents reasonably required under
the terms of such underwriting arrangements.



     (b) Each Person that is participating in any registration hereunder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind described in Section
4(e) above, such Person will forthwith discontinue the disposition of its Registrable
Securities pursuant to the registration statement until such Person’s receipt of the copies of a
supplemented or amended prospectus as contemplated by such Section 4(e). In the event that
the Company shall give any such notice, the applicable time period mentioned in Section
4(b) during which a Registration Statement is to remain effective shall be extended by the
number of days during the period from and including the date of the giving of such notice pursuant
to this Section 7 to and including the date when each seller of a Registrable Security
covered by such registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 4( e ).



11









 





     8. Current Public Information. At all times after the Company has filed a registration
statement with the Securities and Exchange Commission pursuant to the requirements of either the
Securities Act or the Securities Exchange Act, the Company will file all reports required to be
filed by it under the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such further action as
any holder or holders of Registrable Securities may reasonably request, all to the extent required
to enable such holders to sell Registrable Securities pursuant to Rule 144 adopted by the
Securities and Exchange Commission under the Securities Act (as such rule may be amended from time
to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange
Commission.



     9. Definitions.



     “Common Stock” shall mean the Common Stock, no par value, of the Company.



     “FBR” shall have the meaning set forth in the preamble.



     “FBR Registrable Shares” shall mean Registrable Shares (as defined in the FBR
Registration Agreement).



     “FBR Registration Agreement” shall have the meaning set forth in the preamble.



     “NASD” shall have the meaning set forth in Section 4(f).



     “New Investors” shall have the meaning set forth in the preamble.



     “Offering” shall have the meaning set forth in the preamble.



     “Original Agreement” shall have the meaning set forth in the preamble.



     “Other Registrable Securities” means (i) all shares of Common Stock of the Company
originally issued, directly or indirectly, to any Other Investor and (ii) all shares of Common
Stock of the Company issued or issuable, directly or indirectly, with respect to the securities
referred to in clause (i) above upon exercise, conversion, or exchange or by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization, and (iii) any other shares of Common Stock of the Company
held by Persons holding securities described in clauses (i) and (ii) above. As to any particular
Other Registrable Securities, such securities shall cease to be Other Registrable Securities when
they have been (a) distributed to the public pursuant to an offering registered under the
Securities Act, (b) sold to the public through a broker, dealer, or market maker in compliance with
Rule 144 under the Securities Act (or any similar rule then in force), (c) repurchased by the
Company or any Subsidiary thereof or purchased or otherwise acquired by Sun, and, if such Other
Registrable Securities are purchased or otherwise acquired by Sun, then such Other Registrable
Securities shall be deemed Sun Registrable Securities or (d) otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent public distribution of them shall not require registration under the
Securities Act. For purposes of this Agreement, a Person shall be deemed to be a holder of Other
Registrable Securities, and the Other Registrable Securities shall be



12









 




deemed to be in existence, whenever such Person has the right to acquire, directly or
indirectly, such Other Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or limitations upon the
exercise of such right other than vesting), whether or not such acquisition has actually been
effected, and such Person shall be entitled to exercise the rights of a holder of Other Registrable
Securities hereunder.




     “Person” shall mean an individual, a corporation, a limited liability company, an
association, a joint-stock company, a business trust or other similar organization, a partnership,
a joint venture, a trust, an unincorporated organization or a government or any agency,
instrumentality or political subdivision thereof.



     “Purchase/Placement Agreement” shall have the meaning set forth in the preamble.



     “Registrable Securities” means, collectively, the Sun Registrable Securities and the
Other Registrable Securities.



     “Securities Act” shall mean the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations promulgated thereunder, all as amended, modified or
supplemented from time to time.



     “Securities and Exchange Commission” includes any governmental body or agency
succeeding to the functions thereof.



     “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, or
any similar federal law then in force.



     “Subsidiary” or “Subsidiaries” means, with respect to any Person, any corporation,
limited liability company, partnership, association, or other business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors, managers, or trustees
thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability
company, partnership, association, or other business entity, a majority of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of such Person or a combination thereof. For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited
liability company, partnership, association, or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director or general partner of
such limited liability company, partnership, association, or other business entity.



     “Sun Registrable Securities” means (i) all shares of Common Stock of the Company
originally issued, directly or indirectly, to Sun, (ii) all shares of Common Stock of the Company
issued or issuable, directly or indirectly, with respect to the securities referred to in clause
(i) above upon exercise, conversion, or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation, or



13









 




other reorganization, and (iii) all other shares of Common Stock of the Company held by
Persons holding securities described in clauses (i) and (ii) above. As to any particular Sun
Registrable Securities, such securities shall cease to be Sun Registrable Securities when they have
been (a) distributed to the public pursuant to an offering registered under the Securities Act, (b)
sold to the public through a broker, dealer, or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force), (c) repurchased by the Company or any
Subsidiary thereof or purchased or otherwise acquired by any employee of the Company, and, if such
Sun Registrable Securities are purchased or otherwise acquired by any employee of the Company, then
such Sun Registrable Securities shall be deemed Other Registrable Securities or (d) otherwise
transferred, new certificates for them not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent public distribution of them shall not require
registration under the Securities Act. For purposes of this Agreement, a Person shall be deemed to
be a holder of Sun Registrable Securities, and the Sun Registrable Securities shall be deemed to be
in existence, whenever such Person has the right to acquire directly or indirectly such Sun
Registrable Securities (upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and such Person shall be entitled to
exercise the rights of a holder of Sun Registrable Securities hereunder.




     10. Miscellaneous.



     (a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to the Company’s securities which is inconsistent with or violates the
rights granted to the holders of Registrable Securities in this Agreement.



     (b) Adjustments Affecting Registrable Securities. The Company will not take any
action, or permit any change to occur, with respect to the Company’s securities which would
materially and adversely affect the ability of the holders of Registrable Securities to include
such Registrable “Securities in a registration undertaken pursuant to this Agreement or which would
adversely affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split, combination of shares, or other
recapitalization).



     (c) Amendment and Waiver. Except as otherwise provided herein, no modification,
amendment, or waiver of any provision of this Agreement will be effective against the Company or
the holders of Registrable Securities, unless such modification, amendment, or waiver is approved
in writing by the Company and the holders of at least a majority of the Sun Registrable Securities;
provided that in the event that such amendment or waiver would materially and adversely
affect a holder or group of holders of Registrable Securities in a manner substantially different
than any other holders of Registrable Securities, then such amendment or waiver will require the
consent of such holder of Registrable Securities or a majority of the Registrable Securities held
by such group of holders materially and adversely affected. The failure of any party to enforce any
of the provisions of this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.



14









 





     (d) 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.



     (e) Entire Agreement. Except as otherwise expressly set forth herein, this Agreement,
those documents expressly referred to herein, and the other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and preempt any prior
understandings, agreements, or representations by or among the parties, written or oral, which may
have related to the subject matter hereof in any way.



     (f) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective heirs, executors,
successors and assigns. In addition, and whether or not any express assignment shall have been
made, the provisions of this Agreement which are for the benefit of the holders of Registrable
Securities (or any portion thereof) as such shall be for the benefit of, and enforceable by, any
subsequent holder of any Registrable Securities (or of such portion thereof).



     (g) Counterparts. This Agreement may be executed in separate counterparts each of
which will be an original and all of which taken together shall constitute one and the same
agreement.



     (h) Remedies. Any Person having rights under any provision of this Agreement shall be
entitled to enforce their rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights existing in their
favor; provided, however the parties hereto stipulate that the remedies at law of any party
hereto in the event of any default or threatened default by any other party hereto in the
performance of or compliance with the terms hereof are not and will not be adequate and that, to
the fullest extent permitted by law, such terms may be specifically enforced (without posting a
bond or other security) by a decree for the specific performance thereof, whether by an injunction
against violation thereof or otherwise.



     (i) Notices. All communications provided for herein shall be in writing and sent (a)
by facsimile if the sender on the same day sends a confirming copy of such communication by a
recognized overnight delivery service (charges prepaid), (b) by a recognized overnight delivery
service (charges prepaid), or (c) by messenger. The respective addresses of the parties hereto for
the purposes of this Agreement are set forth on Exhibit A attached hereto. Any party may
change its address (or facsimile number) by notice to each of the other parties in accordance with
this Section 10(i). Notice shall be deemed given (and received) on the date of service or
transmission if personally served or transmitted by telegram, telex or facsimile (with confirmation
of successful transmission obtained); provided, that if such service or transmission is not on a
business day or is after normal business hours, then such notice shall be deemed given (and
received) on the next business day. Notice otherwise sent as provided herein shall be



15









 




deemed given (and received) on the next business day following timely delivery of such notice
to a reputable air courier service.




     (j) Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by and construed in accordance with the domestic laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (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. Each party hereto submits to the jurisdiction of any state or federal
court sitting in the State of Delaware, in any action or proceeding arising out of or relating to
this Agreement and agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each party also agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. Each party hereto waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other party with respect thereto. Any party
may make service on any other party by sending or delivering a copy of the process to the party to
be served at the address and in the manner provided for the giving of notices in Section
10(i) above. Nothing in this Section 10(j), however, shall affect the right of any
party to bring any action or proceeding arising out of or relating to this Agreement in any other
court or to serve legal process in any other manner permitted by law or at equity. Each party
agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by law or at equity. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER
PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS, HIS OR HER OBLIGATIONS HEREUNDER
OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     (k) No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.



     (l) Business Days. If any time period for giving notice or taking action hereunder
expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s
chief executive office is located, the time period shall automatically be extended to the business
day immediately following such Saturday, Sunday or legal holiday.



     (m) Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.



* * * * *




16









 








     IN WITNESS WHEREOF, the parties hereto have executed this Registration Agreement on the
date first written above.



	 	 	 	 	 	 	 
	 	 	HORSEHEAD HOLDING CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James M. Hensler
 

James M. Hensler
	 	 
	 

	 	Title:
	 	President and CEO	 	 
	 
	 	 	 	 	 	 
	 	 	SUN HORSEHEAD, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Kevin Calhoun
 

Kevin Calhoun
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	RANDOLPH STREET PARTNERS VI	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Matthew E. Steinmetz
 

Matthew E. Steinmetz
	 	 
	 

	 	Title:
	 	Managing Partner	 	 
	 
	 	 	 	 	 	 
	 	 	DANIEL WOLF	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Daniel Wolf	 	 
	 	 	 	 	 
	 

	 	Name:	 	Daniel Wolf	 	 
	 
	 	 	 	 	 	 
	 	 	ERIC MILLER	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Eric Miller	 	 
	 	 	 	 	 
	 

	 	Name:	 	Eric Miller	 	 
	 
	 	 	 	 	 	 
	 	 	MARK NEPORENT	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Mark Neporent	 	 
	 	 	 	 	 
	 

	 	Name:	 	Mark Neporent	 	 





Signature Page to Registration Agreement




 









 





	 	 	 	 	 	 	 
	 	 	KEVIN GENDA	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Kevin Genda	 	 
	 	 	 	 	 
	 

	 	Name:	 	Kevin Genda	 	 
	 
	 	 	 	 	 	 
	 	 	KRISTINE LUBERT TRUST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Howard Lubert
 

	 	 
	 

	 	Name:
	 	Howard Lubert	 	 
	 

	 	Title:
	 	Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	JLT INVESTMENTS LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Howard Lubert
 

	 	 
	 

	 	Name:
	 	Howard Lubert	 	 
	 

	 	Title:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	GERMANTOWN VENTURES, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ira M. Lubert
 

	 	 
	 

	 	Name:
	 	Ira M. Lubert	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	 	 	HOWARD ROSS	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Hoaward Ross	 	 
	 	 	 	 	 
	 

	 	Name:	 	Hoaward Ross	 	 
	 
	 	 	 	 	 	 
	 	 	SETH LEHR	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Seth Lehr	 	 
	 	 	 	 	 
	 

	 	Name:	 	Seth Lehr	 	 





Signature Page to Registration Agreement




 









 





	 	 	 	 	 	 	 
	 	 	ELLYN LEHR	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Ellyn Lehr	 	 
	 	 	 	 	 
	 

	 	Name:	 	Ellyn Lehr	 	 
	 
	 	 	 	 	 	 
	 	 	NATE COHEN	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Nate Cohen	 	 
	 	 	 	 	 
	 

	 	Name:	 	Nate Cohen	 	 
	 
	 	 	 	 	 	 
	 	 	GLEN OKEN	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Glen Oken	 	 
	 	 	 	 	 
	 

	 	Name:	 	Glen Oken	 	 
	 
	 	 	 	 	 	 
	 	 	H.I.G. SUN CAPITAL PARTNERS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sami Mnaymneh
 

	 	 
	 

	 	Name:
	 	Sami Mnaymneh	 	 
	 

	 	Title:
	 	Co-President	 	 
	 
	 	 	 	 	 	 
	 	 	IL VENTURE CAPITAL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ira M. Lubert
 

	 	 
	 

	 	Name:
	 	Ira M. Lubert	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	 	 	MITCHELL HOLLIN	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Mitchell Hollin	 	 
	 	 	 	 	 
	 

	 	Name:	 	Mitchell Hollin	 	 
	 
	 	 	 	 	 	 
	 	 	LARRY HOLLIN	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Larry Hollin	 	 
	 	 	 	 	 
	 

	 	Name:	 	Larry Hollin	 	 





Signature Page to Registration Agreement