EX-4.3



 





Exhibit 4.3




REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is made and entered into as of
November 30, 2006, by and among Horsehead Holding Corp., a Delaware corporation (the
“Company”) and Friedman, Billings, Ramsey & Co., Inc., a Delaware corporation
(“FBR”), for the benefit of FBR, the purchasers of the Company’s common stock, par value
$0.01 per share (the “Common Stock”), as participants (“Participants”) in the
private placement by the Company of shares of Common Stock (the “Private Placement”), and
the direct and indirect transferees of FBR, and each of the Participants.



     This Agreement is made pursuant to the Purchase/Placement Agreement (the
“Purchase/Placement Agreement”), dated as of November 20, 2006, by and between the Company
and FBR in connection with the purchase and sale or placement of an aggregate of 13,750,000 shares
of the Company’s Common Stock (plus an additional 2,062,500 shares to cover additional allotments,
if any) (the “Offering”). In order to induce FBR to enter into the Purchase/Placement
Agreement, the Company has agreed to provide the registration rights provided for in this Agreement
to FBR, the Participants, and their respective direct and indirect transferees. The execution of
this Agreement is a condition to the closing of the transactions contemplated by the
Purchase/Placement Agreement.



     The parties hereby agree as follows:



1. DEFINITIONS




     As used in this Agreement, the following terms shall have the following meanings:



     144A/Regulation S Shares: Shares initially sold to FBR in the Private Placement and resold by
FBR to “qualified institutional buyers” (as such term is defined in Rule 144A) or to “non-U.S.
persons” (in accordance with Regulation S) in an “offshore transaction” (in accordance with
Regulation S).



     Affiliate: As to any specified Person, (i) any Person directly or indirectly owning,
controlling or holding, with power to vote, ten percent or more of the outstanding voting
securities of such other Person, (ii) any Person ten percent or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held, with power to vote, by such other
Person, (iii) any Person directly or indirectly controlling, controlled by or under common control
with such other Person, (iv) any executive officer, director, trustee or general partner of such
Person and (v) any legal entity for which such Person acts as an executive officer, director,
trustee or general partner. An indirect relationship shall include circumstances in which a
Person’s spouse, children, parents, siblings or mother, father, sister or brother-in-law is or has
been associated with a Person.



     Agreement: As defined in the preamble.



     Business Day: With respect to any act to be performed hereunder, each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in
New York, New York or other applicable places where such act is to occur are authorized or
obligated by applicable law, regulation or executive order to close.



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     Closing Date: The date of this Agreement or such other time or such other date as FBR and the
Company may agree.



     Commission: The Securities and Exchange Commission.



     Common Stock: As defined in the preamble.



     Company: As defined in the preamble.



     Controlling Person: As defined in Section 6(a) hereof.



     End of Suspension Notice: As defined in Section 5(b) hereof.



     Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission pursuant thereto.



     FBR: As defined in the preamble.



     Filing Bonus Plan: The bonus plan established by the Company pursuant to which James M.
Hensler and Robert D. Scherich shall be entitled to an aggregate maximum filing bonus of $500,000,
to be divided equally, if the Company files a Registration Statement registering the resale of the
Private Placement Shares and 144A/Regulation S Shares by April 15, 2007.



     Form 8-K: Current report required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act, as such form may be amended from time to time, or any similar
form, rule or regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such form.



     Form 10-K: Annual report required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act, as such form may be amended from time to time, or any similar
form, rule or regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such form.



     Form 10-Q: Quarterly report required to be filed with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act, as such form may be amended from time to time, or any similar
form, rule or regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such form.



     Holder: Each record owner of any Registrable Shares from time to time, including FBR and its
Affiliates.



     Indemnified Party: As defined in Section 6(c) hereof.



     Indemnifying Party: As defined in Section 6(c) hereof.



     IPO Registration Statement: As defined in Section 2(b) hereof.



     Liabilities: As defined in Section 6(a) hereof.



     NASD: The National Association of Securities Dealers, Inc.



     No Objections Letter: As defined in Section 4(a)(xx) hereof.



     Offering Memorandum: The Offering Memorandum of the Company dated November 20, 2006 pursuant
to which the 144A/Regulation S Shares and the Private Placement Shares are offered and sold.



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     Participant: As defined in the preamble.



     Person: An individual, partnership, corporation, trust, unincorporated organization,
government or agency or political subdivision thereof, or any other legal entity.



     Private Placement: As defined in the preamble.



     Private Placement Shares: Shares initially sold by the Company directly to “accredited
investors” (within the meaning of Rule 501(a) promulgated under the Securities Act) as
Participants, with FBR acting as placement agent.



     Proceeding: An action, claim, suit or proceeding (including without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or, to the knowledge
of the Person subject thereto, threatened.



     Prospectus: The prospectus included in any Registration Statement, including any preliminary
prospectus, and all other amendments and supplements to any such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed to be incorporated
by reference, if any, in such prospectus.



     Purchase/Placement Agreement: As defined in the preamble.



     Purchaser Indemnitee: As defined in Section 6(a) hereof.



     Questionnaire: As defined in Section 4(b) hereof.



     Questionnaire Deadline: As defined in Section 4(b) hereof.



     Registrable Shares: The 144A/Regulation S Shares and the Private Placement Shares, upon
original issuance thereof, and at all times subsequent thereto, including upon the transfer thereof
by the original holder or any subsequent holder and any shares or other securities issued in
respect of such Registrable Shares by reason of or in connection with any stock dividend, stock
distribution, stock split, purchase in any rights offering or in connection with any exchange for
or replacement of such Registrable Shares or any combination of shares, recapitalization, merger or
consolidation, or any other equity securities issued pursuant to any other pro rata distribution
with respect to such Registrable Shares until the earliest to occur of (i) the date on which such
share has been first registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement relating to it, (ii) the date on which such share is
either distributed to the public pursuant to Rule 144 (or any similar provision then in effect) or
is eligible for sale without registration, pursuant to Rule 144(k) promulgated by the Commission
pursuant to the Securities Act or (iii) the date on which it is sold to the Company or any
subsidiary of the Company.



     Registration Agreement: That certain Registration Agreement dated as of December 23, 2003, as
amended and restated on the date hereof, by and among the Company, Sun Horsehead, LLC and certain
other equityholders party to such agreement.



     Registration Expenses: Any and all expenses incident to the performance of or compliance with
this Agreement, including, without limitation: (i) all Commission, securities exchange, NASD
registration, listing, inclusion and filing fees, including, if applicable, the fees and expenses
of a “qualified independent underwriter” and its counsel that is required to be
retained by any Holder of Registrable Shares in connection with an underwritten offering in
accordance with the rules and regulations of the NASD, (ii) all fees and expenses incurred in



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connection with compliance with international, federal or state securities or blue sky laws
(including, without limitation, any registration, listing and filing fees and reasonable fees and
disbursements of counsel in connection with blue sky qualification of any of the Registrable Shares
and the preparation of a blue sky memorandum and compliance with the rules of the NASD), (iii) all
expenses in preparing or assisting in preparing, word processing, duplicating, printing, delivering
and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements, certificates and any other documents
relating to the performance under and compliance with this Agreement, (iv) all fees and expenses
incurred in connection with the listing or inclusion of any of the Registrable Shares on any
securities exchange pursuant to Section 4(a)(xiv) of this Agreement, (v) the fees and disbursements
of counsel for the Company and of the independent public accountants of the Company (including,
without limitation, the expenses of any special audit and “cold comfort” letters required by or
incident to such performance), (vi) reasonable fees and disbursements of one counsel, reasonably
acceptable to the Company, for the Holders, which shall be Akin Gump Strauss Hauer & Feld LLP,
unless other counsel is selected by the Holders holding a majority of the Registrable Shares
included in the registration statement (such counsel, “Selling Holders’ Counsel”) and (vii)
any fees and disbursements customarily paid by issuers in issues and sales of securities (including
the fees and expenses of any experts retained by the Company in connection with any Registration
Statement); provided, however, that Registration Expenses shall exclude transfer taxes, brokers’ or
underwriters’ discounts and commissions, if any, relating to the sale or disposition of Registrable
Shares by a Holder and the fees and disbursements of any counsel to or accounting firm of the
Holders other than as provided for in subparagraphs (v) and (vi) above.




     Registration Statement: Any registration statement of the Company that covers the resale of
Registrable Shares pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.



     Regulation S: Regulation S (Rules 901-904) promulgated by the Commission under the Securities
Act, as such rules may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission as a replacement thereto having substantially the same effect as such
regulation.



     Rule 144: Rule 144, and any of its referenced paragraphs, promulgated by the Commission
pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission as a replacement thereto having substantially the
same effect as such rule.



     Rule 144A: Rule 144A promulgated by the Commission pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.



     Rule 158: Rule 158 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.



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     Rule 415: Rule 415 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.



     Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.



     Rule 457: Rule 457 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.



     Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder.



     Selling Holders’ Counsel: As defined under “Registration Expenses” in Section 1 hereof.



     Shares: The shares of Common Stock being offered and sold pursuant to the terms and
conditions of the Purchase/Placement Agreement.



     Shelf Registration Statement: As defined in Section 2(a) hereof.



     Suspension Event: As defined in Section 5(b) hereof.



     Suspension Notice: As defined in Section 5(b) hereof.



     Underwritten Offering: A sale of securities of the Company to an underwriter or underwriters
for reoffering to the public.



2. REGISTRATION RIGHTS




     (a) Mandatory Shelf Registration. As set forth in Section 4 hereof, the Company
agrees to file with the Commission no later than April 15, 2007, a shelf Registration Statement on
Form S-1 or such other form under the Securities Act then available to the Company providing for
the resale of any Registrable Shares pursuant to Rule 415 from time to time by the Holders (a
“Shelf Registration Statement”). The Company shall use its commercially reasonable efforts
to cause such Shelf Registration Statement to be declared effective by the Commission as soon as
practicable after the filing. Any Shelf Registration Statement shall provide for the resale from
time to time, and pursuant to any method or combination of methods legally available (including,
without limitation, an Underwritten Offering, a direct sale to purchasers or a sale through brokers
or agents, which may include sales over the internet) by the Holders of any and all Registrable
Shares.



     (b) IPO Registration.



          (i) If the Company proposes to file a registration statement on Form S-1 or such other form
under the Securities Act providing for the initial public offering of shares of Common Stock (the
“IPO Registration Statement”), the Company will notify each Holder of the
proposed filing, and of the managing underwriter(s) for such offering, and afford each Holder
an opportunity to include in the IPO Registration Statement all or any part of the Registrable Shares




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then held by such Holder. Each Holder desiring to include in the IPO Registration Statement all or
part of the Registrable Shares held by such Holder shall, within twenty (20) days after receipt of
the above-described notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Shares such Holder wishes to include in the
IPO Registration Statement. Any election by any Holder to include any Registrable Shares in the
IPO Registration Statement will not affect the inclusion of such Registrable Shares in the Shelf
Registration Statement until such Registrable Shares have been sold under the IPO Registration
Statement; provided, however, that at such time of sale, the Company shall have the right to remove
from any Shelf Registration Statement any Registrable Shares sold pursuant to an IPO Registration
Statement.




          (ii) (Right to Terminate IPO Registration. The Company, in its sole discretion, shall
have the right to terminate or withdraw the IPO Registration Statement initiated by it referred to
in this Section 2(b) prior to the effectiveness of such registration whether or not any Holder has
elected to include Registrable Shares in such registration.




          (iii) Selection of Underwriter. The Company shall have the sole right to select the
managing underwriter(s) for its initial public offering, regardless of whether any Registrable
Shares are included in the IPO Registration Statement or otherwise.




          (iv) Shelf Registration not Impacted by IPO Registration Statement. The Company’s
obligation to file the Shelf Registration Statement pursuant to Section 2(a) hereof shall not be
affected by the filing or effectiveness of the IPO Registration Statement, except that the Company
shall have the right to remove from any Shelf Registration Statement any Registrable Shares sold
pursuant to an IPO Registration Statement.




     (c) Underwriting.



          (i) The right of any such Holder’s Registrable Shares to be included in the IPO Registration
Statement pursuant to Section 2(b) shall be conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable Shares in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable Shares through such
underwriting shall enter into an underwriting agreement in customary form with the managing
underwriter(s) selected for such underwriting and complete and execute any questionnaires, powers
of attorney, indemnities, securities escrow agreements, lock-up agreements and other documents
reasonably required under the terms of such underwriting, and furnish to the Company such
information as the Company may reasonably request in writing for inclusion in the Registration
Statement; provided, however, that no Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, its holdings and such Holder’s intended method of
distribution, and the disclosure in the applicable prospectus related thereto and any other
representation required by law, regulation or reasonably requested by the underwriters.
Notwithstanding any other provision of this Agreement, if the managing underwriter(s) determine(s)
in good faith that marketing factors require a limitation on the number of shares to be included,
then the managing underwriter(s) may exclude shares (including Registrable Shares) from the IPO
Registration Statement and Underwritten Offering, and any shares included in such IPO Registration
Statement and Underwritten Offering shall be




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allocated first, to the Company, and second, to (i) each of the Holders requesting
inclusion of their Registrable Shares in such IPO Registration Statement and (ii) each holder of
shares of Common Stock eligible for registration pursuant to the Registration Agreement (on a pro
rata basis based on the total number of shares of Common Stock then held by each such holder who is
requesting inclusion); provided, however, that the number of Registrable Shares to be included in
the IPO Registration Statement shall not be reduced unless all other securities of the Company held
by (i) officers, directors, other employees of the Company and consultants; and (ii) other holders
of the Company’s capital stock with registration rights that are subordinate (with respect to such
reduction) to the registration rights of the Holders set forth herein, but in no event shares held
by parties to the Registration Agreement as of the date hereof, are first entirely excluded from
the underwriting and registration.




          (ii) Regardless of whether a Holder elects to include Registrable Shares in the IPO
Registration Statement, the Holder of such Registrable Shares shall be deemed to have agreed not to
effect any public sale or distribution of securities of the Company of the same or similar class or
classes of the securities included in the IPO Registration Statement or any securities convertible
into or exchangeable or exercisable for such securities, including a sale pursuant to Rule 144 or
Rule 144A, during such periods as reasonably requested (but in no event for a period longer than
thirty (30) days prior to and sixty (60) days following the effective date of the IPO Registration
Statement) by the representatives of the underwriters, if an Underwritten Offering, or by the
Company in any other registration.




          (iii) If any Holder disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten
(10) Business Days prior to the effective date of the Registration Statement covering the
Underwritten Offering, provided that the Holder may agree to waive this right to withdraw with the
Company, the underwriters or any custodial agent in any custody agreement and/or power of attorney
executed by such Holder in connection with the underwriting. Any Registrable Shares excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the registration.




     (d) Company Registrations.



          (i) Subject to the terms of this Agreement, in the event the Company decides to register any
of its securities, other than as contemplated by Sections 2(a) and 2(b) (either for its own account
or the account of a security holder) and other than a registration on Form S-4 or S-8 (or any
successor or similar forms), on a form that would be suitable for a registration involving
Registrable Shares, the Company will (i) promptly give the Holders written notice thereof and (ii)
subject to Section 2(d)(ii)(b) below, include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved therein, all the
Registrable Shares specified in a written request delivered to the Company by the Holders within
ten (10) business days after delivery of such written notice from the Company.




          (ii) Underwriting in Piggyback Registration.





	 	a.	 	Notice of Underwriting in Piggyback Registration. If the registration of which the Company gives
notice is for a registered





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	 	 	 	public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to
Section 2(d)(i). In such event, the right of the Holders to
registration shall be conditioned upon such underwriting and the
inclusion of their Registrable Shares in such underwriting to the
extent provided in this Section 2(d)(ii). To the extent that the
Holders wish to distribute their securities through such underwriting
they shall (together with the Company and any Holders distributing
their securities through such underwriting) enter into an
underwriting agreement with the managing underwriter on behalf of all
underwriters for such offering. The Holders shall have no right to
participate in the selection of the underwriters for an offering
pursuant to this Section 2(d)(ii).
	 
	 	b.	 	Marketing Limitation in Piggyback
Registration. In the event the managing underwriter on behalf of
all underwriters advises the Holders seeking registration of
Registrable Shares pursuant to this Section 2(d) in writing that market
factors (including, without limitation, the aggregate number of shares
of Common Stock requested to be registered, the general condition of
the market, and the status of the persons proposing to sell securities
pursuant to the registration) require a limitation of the number of
shares to be underwritten, the managing underwriter on behalf of all
underwriters (subject to the allocation set forth in this Section
2(d)(ii)(b)) may exclude some or all Registrable Shares from such
registration and underwriting. In the event that the managing
underwriter on behalf of all underwriters limits the number of shares
to be included in a registration pursuant to this Section 2(d)(ii)(b),
or shall otherwise require a limitation of the number of shares to be
included in the registration, then the Company will include in such
registration first securities proposed by the Company to be
sold for its own account, and second (1) Registrable Shares
requested to be included in the registration by any other person
holding registration rights, including the Holders, and (2) shares of
Common Stock eligible for registration pursuant to the Registration
Agreement, on a pro rata basis based on the total number of shares of
Common Stock eligible for inclusion then held by each such person
requesting inclusion; provided, however, that in the event of a demand
registration pursuant to the Registration Agreement, any shares of
Common Stock eligible for registration under such agreement shall have
priority over the Registrable Shares for purposes of this Section
2(d)(ii)(b).
	 
	 	c.	 	Right of Withdrawal in Piggyback
Registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter, delivered at least ten (10)
Business Days prior




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	 	 	 	to the effective date of the Registration Statement covering the
Underwritten Offering, provided that the Holder may agree to waive
this right to withdraw with the Company, the underwriters or any
custodial agent in any custody agreement and/or power of attorney
executed by such Holder in connection with the underwriting. Any
Registrable Shares excluded or withdrawn from such underwriting shall
be excluded and withdrawn from such registration.





     (e) Expenses. The Company shall pay all Registration Expenses in connection with the
registration of the Registrable Shares pursuant to this Agreement. Each Holder participating in a
registration pursuant to this Section 2 shall bear such Holder’s proportionate share (based on the
total number of Registrable Shares sold in such registration) of all discounts and commissions
payable to underwriters or brokers in connection with a registration of Registrable Shares pursuant
to this Agreement.



     (f) Executive Bonuses. If the Company does not file a Registration
Statement registering the resale of the Private Placement Shares and the 144A/Regulation S Shares
by April 15, 2007, other than as a result of the Commission being unable to accept such filings,
then the maximum bonus each of James M. Hensler and Robert D. Scherich would be entitled to
pursuant to the Company’s Filing Bonus Plan shall be reduced by 1% for each Business Day that the
registration default continues. Notwithstanding the foregoing, the reduction in bonuses will not
apply at any time when the Company has endeavored in good faith to file a Registration Statement
within the time period set forth above but is unable to make the filing as of the specified date as
a result of circumstances beyond the Company’s reasonable control.



3. RULES 144 AND 144A REPORTING




     With a view to making available the benefits of certain rules and regulations of the
Commission that may at any time permit the sale of the Registrable Shares to the public without
registration, the Company agrees to:



     (a) use commercially reasonable efforts to make and keep available adequate current public
information, as those terms are understood and defined in Rule 144, at all times after the
effective date of the first registration under the Securities Act filed by the Company for an
offering of its securities to the general public;



     (b) use commercially reasonable efforts to file with the Commission in a timely manner all
reports and other documents required to be filed by the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting requirements);



     (c) so long as a Holder owns any Registrable Shares, notwithstanding that the Company may not
be required to file reports and other documents under the Securities Act and the Exchange Act, or
otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the Commission, the Company shall use
commercially reasonable efforts to furnish to the Holders,



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within fifteen (15) days after it is or would have been required to file such with the Commission
as a non-accelerated filer: (i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-K and 10-Q if the Company was
required to file such forms, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and, with respect to the annual information only, reports
thereon by the certified independent accountants of the Company and (ii) all current reports that
would be required to be filed with the Commission on Form 8-K if the Company was required to file
such reports;




     (d) so long as a Holder owns any Registrable Shares the Company shall hold, a reasonable time
after the financial statements are made available pursuant to Section 3(c)(i) and upon reasonable
notice to the Holders and FBR (either by mail or by press release), a quarterly investor conference
call for the Holders to discuss such financial statements, which call will also include an
opportunity for the Holders to ask questions of management with regard to such financial
statements;



     (e) so long as a Holder owns any Registrable Shares, if the Company is not required to file
reports and other documents under the Securities Act and the Exchange Act, it will make available
other information as required by, and so long as necessary to permit sales of Registrable Shares
pursuant to, Rule 144 or Rule 144A; and



     (f) so long as a Holder owns any Registrable Shares, to furnish to the Holder promptly upon
request (i) a written statement by the Company as to its compliance with the reporting requirements
of Rule 144 (at any time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to the reporting
requirements of the Exchange Act), and (ii) such other reports and documents of the Company, and
take such further actions, as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such Registrable Shares without
registration.



4. REGISTRATION PROCEDURES




     (a) In connection with the obligations of the Company with respect to any registration
pursuant to this Agreement, (x) the Company shall use its commercially reasonable efforts to effect
or cause to be effected the registration of the Registrable Shares under the Securities Act to
permit the sale of such Registrable Shares by the Holder or Holders in accordance with the Holder’s
or Holders’ intended method or methods of distribution, and (y) the Company shall:



          (i) notify FBR and Selling Holders’ Counsel, in writing, at least ten (10) Business Days prior
to the initial filing of a Registration Statement, of its intention to file a Registration
Statement with the Commission and, at least five (5) Business Days prior to the initial filing,
provide a copy of the Registration Statement to FBR, its counsel, and Selling Holders’ Counsel for
review and comment; prepare and file with the Commission, as specified in this Agreement, a
Registration Statement(s), which Registration Statement(s) (x) shall comply as to form in all
material respects with the requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith and (y) shall be reasonably




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acceptable to FBR, its counsel and Selling Holders’ Counsel; notify FBR and Selling Holders’
Counsel in writing, at least five (5) Business Days prior to the filing of any amendment or
supplement to such Registration Statement and, at least three (3) Business Days prior to filing,
provide a copy of such amendment or supplement to FBR, its counsel and Selling Holders’ Counsel for
review and comment; promptly following receipt from the Commission, provide to FBR, its counsel and
Selling Holders’ Counsel copies of any comments made by the staff of the Commission relating to
such Registration Statement and of the Company’s responses thereto for review and comment; and use
its commercially reasonable efforts to cause such Registration Statement to become effective as
soon as reasonably practicable after filing and to remain effective, subject to Section 5 hereof,
until the earlier of (1) such time as all Registrable Shares covered thereby have been sold
pursuant to a Registration Statement or pursuant to Rule 144, (2) there are no Registrable Shares
outstanding (including as a result of such Shares having become eligible to be sold pursuant to
Rule 144(k)), (3) the Registrable Shares have been sold to the Company or any of its subsidiaries,
or (4) the second anniversary of the effective date of such Registration Statement (subject to
extension as provided in Section 5(c) hereof); provided, that if the Company has an effective Shelf
Registration Statement on Form S-1 under the Securities Act and becomes eligible to use Form S-3 or
such other short-form registration statement form under the Securities Act, the Company may, upon
thirty (30) Business Days prior written notice to all Holders, either (i) amend the Shelf
Registration Statement on Form S-1 to convert it into a Form S-3 Shelf Registration Statement or
(ii) register any Registrable Shares registered but not yet distributed under the effective Shelf
Registration Statement on such a short-form Shelf Registration Statement and, once the short-form
Shelf Registration Statement is declared effective, de-register such shares under the previous
Registration Statement or transfer the filing fees from the previous Registration Statement (such
transfer pursuant to Rule 457, if applicable) unless any Holder registered under the initial Shelf
Registration Statement notifies the Company within twenty (20) Business Days of receipt of the
Company notice that such a registration under a new Registration Statement and de-registration of
the initial Shelf Registration Statement would interfere with its distribution of Registrable
Shares already in progress;




          (ii) subject to Section 4(a)(ix) hereof, (1) prepare and file with the Commission such
pre-effective amendments and post-effective amendments to any Registration Statement as may be
necessary to keep such Registration Statement effective for the period described in Section 4(a)(i)
hereof; (2) cause each Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be
adopted under the Securities Act; (3) amend or supplement each such Registration Statement to
include the Company’s quarterly and annual financial information and other material developments
(until the Company is eligible to incorporate such information by reference into the Registration
Statement), during which time sales of the Registrable Securities under the Shelf Registration
Statement will be suspended until such amendment is filed and effective, and (4) comply with the
provisions of the Securities Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;




          (iii) furnish to the Holders, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, if any, and any amendment or supplement thereto and such other
documents as such Holder may reasonably request, in order to facilitate the public




11









 




sale or other disposition of the Registrable Shares; the Company consents to the lawful use of such
Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the
offering and sale of the Registrable Shares covered by any such Prospectus;




          (iv) use its commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the applicable Registration
Statement is declared effective by the Commission under all applicable state securities or “blue
sky” laws of such jurisdictions as FBR or any Holder of Registrable Shares covered by a
Registration Statement shall reasonably request in writing, keep each such registration or
qualification or exemption effective during the period such Registration Statement is required to
be kept effective pursuant to Section 4(a)(i) and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company
shall not be required to (1) qualify generally to do business in any jurisdiction or to register as
a broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for
this Section 4(a)(iv) and except as may be required by the Securities Act, (2) subject itself to
taxation in any such jurisdiction, or (3) submit to the general service of process in any such
jurisdiction;




          (v) use its commercially reasonable efforts to cause all Registrable Shares covered by such
Registration Statement to be registered and approved by such other U.S. federal and state
governmental agencies or authorities as may be necessary to enable the Holders thereof to
consummate the disposition of such Registrable Shares;




          (vi) notify FBR and each Holder promptly and, if requested by FBR or any such Holder, confirm
such advice in writing (1) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (2) of the issuance by the
Commission or any state securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose, (3) of any request by
the Commission or any other federal, state or foreign governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for additional information, (4) of
the happening of any event during the period a Registration Statement is effective as a result of
which such Registration Statement or the related Prospectus or any document incorporated by
reference therein contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not misleading
(which notice may be in the form of a Suspension Notice under Section 5(b) hereof) and (5) at the
request of any such Holder, promptly to furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such Prospectus prepared in accordance with Section 4(a)(ix);




          (vii) except as provided in Section 5, use its commercially reasonable efforts to avoid the
issuance of, or if issued, to obtain the withdrawal of, any order enjoining or suspending the use
or effectiveness of a Registration Statement covering Registrable Shares or suspending of the
qualification (or exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, as promptly as practicable;




12









 





          (viii) upon request, furnish to each requesting Holder of Registrable Shares, without charge,
at least one conformed copy of each Registration Statement and any post-effective amendment or
supplement thereto (without documents incorporated therein by reference or exhibits thereto, unless
requested);




          (ix) except as provided in Section 5, upon the occurrence of any event contemplated by Section
4(a)(vi)(4) hereof, use its commercially reasonable efforts to promptly prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading;




          (x) if requested by the representative of the underwriters, if any, or any Holders of
Registrable Shares being sold in connection with such offering, (1) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the representative of the
underwriters, if any, or such Holders indicate relates to them or that they reasonably request be
included therein and (2) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as reasonably practicable after the Company has received written
notification of the matters to be incorporated in such Prospectus supplement or post-effective
amendment;




          (xi) in the case of an Underwritten Offering, use its commercially reasonable efforts to
furnish to each Holder of Registrable Shares covered by such Registration Statement and the
underwriters a signed counterpart, addressed to each such Holder and the underwriters, of: (1) an
opinion of counsel for the Company, dated the date of each closing under the underwriting
agreement, reasonably satisfactory to such Holder and the underwriters; and (2) a “comfort” letter,
dated the effective date of such Registration Statement and the date of each closing under the
underwriting agreement, signed by the independent public accountants who have certified the
Company’s financial statements included in such Registration Statement, covering substantially the
same matters with respect to such Registration Statement (and the Prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as are customarily
covered in accountants’ letters delivered to underwriters in underwritten public offerings of
securities and such other financial matters as such Holder and the underwriters may reasonably
request;




          (xii) enter into customary agreements (including in the case of an Underwritten Offering, an
underwriting agreement in customary form) and take all other reasonable action in connection
therewith in order to expedite or facilitate the distribution of the Registrable Shares included in
such Registration Statement and, in the case of an Underwritten Offering, make representations and
warranties to the underwriters in such form and scope as are customarily made by issuers to
underwriters in such underwritten offerings and confirm the same to the extent customary if and
when requested;




          (xiii) subject to appropriate confidentiality agreements being entered into, make available
for inspection by representatives of the Holders and the representatives of any




13









 




underwriters participating in any disposition pursuant to a Registration Statement and any special
counsel or accountants retained by such Holders or underwriters during normal business hours and
upon reasonable notice, all financial and other records, pertinent corporate documents and
properties of the Company and cause the respective officers, directors and employees of the Company
to supply all information reasonably requested by such parties in connection with a Registration
Statement; provided, however, that such records, documents or information that the Company
determines, in good faith, to be confidential and notifies such parties are confidential shall not
be disclosed by the representatives, representative of the underwriters, counsel thereto or
accountants unless (1) the disclosure of such records, documents or information is necessary to
avoid or correct a misstatement or omission in a Registration Statement or Prospectus, (2) the
release of such records, documents or information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or otherwise required by law, or (3) such records, documents
or information have been generally made available to the public; and provided, further, that to the
extent reasonably practicable, the foregoing inspection and information gathering shall be
coordinated on behalf of the Holders by Selling Holders’ Counsel;




          (xiv) use its commercially reasonable efforts (including, without limitation, seeking to cure
any deficiencies cited by the exchange or market in the Company’s listing or inclusion application)
to list or include all Registrable Shares on the New York Stock Exchange, the American Stock
Exchange or The Nasdaq Global Market and thereafter maintain the listing on such exchange or
market;




          (xv) prepare and file in a timely manner all documents and reports required by the Exchange
Act and, to the extent the Company’s obligation to file such reports pursuant to Section 15(d) of
the Exchange Act expires prior to the expiration of the effectiveness period of the Registration
Statement as required by Section 4(a)(i) hereof, the Company shall register the Registrable Shares
under the Exchange Act and maintain such registration through the effectiveness period required by
Section 4(a)(i) hereof;




          (xvi) provide a CUSIP number for all Registrable Shares, not later than the effective date of
the Registration Statement;




          (xvii) (1) otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, (2) make generally available to its stockholders, as soon
as reasonably practicable, earnings statements covering at least 12 months that satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 (or any similar rule promulgated
under the Securities Act ) thereunder, but in no event later than the earlier of any filing date
required for the filing of an annual report on Form 10-K as would be applicable to the Company or
forty-five (45) days after the end of each fiscal year of the Company and (3) not file any
Registration Statement or Prospectus or amendment or supplement to such Registration Statement or
Prospectus to which any Holder of Registrable Shares covered by any Registration Statement shall
have reasonably objected in writing on the grounds that such Registration Statement or Prospectus
or amendment or supplement does not comply in all material respects with the requirements of the
Securities Act, such Holder having been furnished with a copy thereof at least two (2) Business
Days prior to the filing thereof;




14









 





          (xviii) provide and cause to be maintained a registrar and transfer agent for all Registrable
Shares covered by any Registration Statement from and after a date not later than the effective
date of such Registration Statement;




          (xix) in connection with any sale or transfer of the Registrable Shares (whether or not
pursuant to a Registration Statement) that will result in the security being delivered no longer
being Registrable Shares, cooperate with the Holders and the representative of the underwriters, if
any, to the extent reasonably necessary to facilitate the timely preparation and delivery of any
certificates representing the Registrable Shares to be sold, which certificates shall not bear any
transfer restrictive legends (other than as required by the Company’s certificate of incorporation
or bylaws) and to enable such Registrable Shares to be in such denominations and registered in such
names as the representative of the underwriters, if any, or the Holders may request at least two
(2) Business Days prior to any sale of the Registrable Shares;




          (xx) in connection with the initial filing of a Shelf Registration Statement and each
amendment thereto with the Commission pursuant to Section 2(a) hereof, prepare or cause to be
prepared and, within one (1) Business Day of such filing with the Commission, file with the NASD
all forms and information required or requested by the NASD in order to obtain written confirmation
from the NASD that the NASD does not object to the fairness and reasonableness of the underwriting
terms and arrangements (or any deemed underwriting terms and arrangements) (each such written
confirmation, a “No Objections Letter”) relating to the resale of Registrable Shares
pursuant to the Shelf Registration Statement, including, without limitation, information provided
to the NASD through its COBRADesk system, and pay all costs, fees and expenses incident to the
NASD’s review of the Shelf Registration Statement and the related underwriting terms and
arrangements, including, without limitation, all filing fees associated with any filings or
submissions to the NASD and the legal expenses, filing fees and other disbursements of FBR and any
other NASD member that is the holder of, or is affiliated or associated with an owner of,
Registrable Shares included in the Shelf Registration Statement (including in connection with any
initial or subsequent member filing); and




          (xxi) upon effectiveness of the first Registration Statement filed under this Agreement, the
Company will take such actions and make such filings as are necessary to effect the registration of
the Common Stock under the Exchange Act simultaneously with or immediately following the
effectiveness of the Registration Statement.




     (b) Notwithstanding anything to the contrary, if the Company files a mandatory Shelf
Registration Statement in accordance with Section 2(a) of this Agreement, each Holder desiring to
include all or any part of its Registrable Shares in the Shelf Registration Statement pursuant to
this Agreement shall, within twenty (20) Business Days after the date of the notice including a
request therefor (the “Questionnaire Deadline”), provide to the Company such information as
the Company may reasonably request for use in connection with the Shelf Registration Statement or
any Prospectus included therein and in any application to be filed with or under state securities
laws (the “Questionnaire”), and which shall cause the Holder to be bound by the terms of
this Agreement. Notwithstanding anything to the contrary, from and after the date that the Shelf
Registration Statement is declared effective by the Commission, the Company shall as promptly
as is reasonably practicable take all actions as contemplated by Sections 4(a)(i), (ii),
(iii), (vi), (viii), (ix) and (x) so that such Holder delivering the Questionnaire in a timely
fashion is named



15









 




as a selling security holder in the initial Shelf Registration Statement and the related Prospectus
in such a manner so as to permit the Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with the Securities Act and applicable state securities laws.
Notwithstanding anything to the contrary, to the extent any Holder desiring to be added to the
mandatory Shelf Registration Statement after the effective date of such registration statement
shall be required to deliver the Questionnaire to the Company and upon receipt of such
Questionnaire, the Company will, as soon as is practicable, amend such registration statement or
supplement the prospectus contained therein in accordance with Commission rules and guidance.




     (c) The Company may require the Holders to furnish to the Company such information regarding
the proposed distribution by such Holder of such Registrable Shares as the Company may from time to
time reasonably request in writing or as shall be required to effect the registration of the
Registrable Shares, and no Holder shall be entitled to be named as a selling stockholder in any
Registration Statement and no Holder shall be entitled to use the Prospectus forming a part thereof
if such Holder does not provide such information to the Company. Each Holder further agrees to
furnish promptly to the Company in writing all information required from time to time to make the
information previously furnished by such Holder (in light of the circumstances under which they
were made) not misleading.



     (d) Each Holder agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 4(a)(vi)(3) or 4(a)(vi)(4) hereof, such Holder will
immediately discontinue disposition of Registrable Shares pursuant to a Registration Statement
until such Holder’s receipt of the copies of the supplemented or amended Prospectus. If so
directed by the Company, such Holder will deliver to the Company (at the expense of the Company)
all copies in its possession, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Registrable Shares current at the time of receipt of such notice.



5. BLACK-OUT PERIOD




     (a) Subject to the provisions of this Section 5, following the effectiveness of a Registration
Statement (and the filings with any international, federal or state securities commissions), the
Company, by written notice to FBR and the Holders, may direct the Holders to suspend sales of the
Registrable Shares pursuant to a Registration Statement for such times as the Company reasonably
may determine is necessary and advisable (but in no event for more than an aggregate of ninety (90)
days in any consecutive twelve (12)-month period commencing on the Closing Date or more than sixty
(60) days in any consecutive ninety (90)-day period, except as a result of a review of any
post-effective amendment by the Commission prior to declaring any post effective amendment to the
Registration Statement effective, provided the Company has used all commercially reasonable efforts
to cause such post effective amendment to be declared effective, if any of the following events
shall occur: (i) the representative of the underwriters of an Underwritten Offering of primary
shares by the Company has advised the Company that the sale of Registrable Shares pursuant to the
Registration Statement would have a material adverse effect on the Company’s initial public
offering; (ii) the majority of the members of the Board of Directors of the Company shall have
determined in good faith that (1) the offer or sale of any Registrable Shares would materially
impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition,
merger, tender offer, business combination,



16









 




corporate reorganization, consolidation or other significant transaction involving the Company, (2)
after the advice of counsel, the sale of Registrable Shares pursuant to the Registration Statement
would require disclosure of non-public material information not otherwise required to be disclosed
under applicable law, or (3) either (x) the Company has a bona fide business purpose for preserving
the confidentiality of such transaction, (y) disclosure would have a material adverse effect on the
Company or the Company’s ability to consummate such transaction, or (z) the proposed transaction
renders the Company unable to comply with Commission requirements, in each case under circumstances
that would make it impractical or inadvisable to cause the Registration Statement (or such filings)
to become effective or to promptly amend or supplement the Registration Statement on a
post-effective basis, as applicable; or (iii) the majority of the members of the Board of Directors
of the Company shall have determined in good faith, after the advice of counsel, that it is
required by law, rule or regulation to supplement the Registration Statement or file a
post-effective amendment to the Registration Statement in order to incorporate information into the
Registration Statement for the purpose of (1) including in the Registration Statement any
prospectus required under Section 10(a)(3) of the Securities Act; (2) reflecting in the prospectus
included in the Registration Statement any facts or events arising after the effective date of the
Registration Statement (or of the most-recent post-effective amendment) that, individually or in
the aggregate, represents a fundamental change in the information set forth therein; or (3)
including in the prospectus included in the Registration Statement any material information with
respect to the plan of distribution or any information required under Item 507 of Regulation S-K
not disclosed in the Registration Statement or any material change to such information. Upon the
occurrence of any such suspension, the Company shall use its commercially reasonable efforts to
cause the Registration Statement to become effective or to promptly amend or supplement the
Registration Statement on a post-effective basis or to take such action as is necessary to make
resumed use of the Registration Statement compatible with the Company’s best interests, as
applicable, so as to permit the Holders to resume sales of the Registrable Shares as soon as
possible.




     (b) In the case of an event that causes the Company to suspend the use of a Registration
Statement (a “Suspension Event”), the Company shall give written notice (a “Suspension
Notice”) to FBR and the Holders to suspend sales of the Registrable Shares and such notice
shall state generally the basis for the notice and that such suspension shall continue only for so
long as the Suspension Event or its effect is continuing and the Company is using its best efforts
and taking all reasonable steps to terminate suspension of the use of the Registration Statement as
promptly as possible. The Holders agree to hold any Suspension Notice in confidence. The Holders
shall not effect any sales of the Registrable Shares pursuant to such Registration Statement (or
such filings) at any time after it has received a Suspension Notice from the Company and prior to
receipt of an End of Suspension Notice (as defined below). If so directed by the Company, each
Holder will deliver to the Company (at the expense of the Company) all copies other than permanent
file copies then in such Holder’s possession of the Prospectus covering the Registrable Shares at
the time of receipt of the Suspension Notice. The Holders may recommence effecting sales of the
Registrable Shares pursuant to the Registration Statement (or such filings) following further
notice to such effect (an “End of Suspension Notice”) from the Company, which End of
Suspension Notice shall be given by the Company to the Holders and FBR in the manner described
above promptly following the conclusion of any Suspension Event and its effect.



17









 





     (c) Notwithstanding any provision herein to the contrary, if the Company shall give a
Suspension Notice pursuant to this Section 5, the Company agrees that it shall extend the period of
time during which the applicable Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days during the period from the date of receipt by the Holders of
the Suspension Notice to and including the date of receipt by the Holders of the End of Suspension
Notice and copies of the supplemented or amended Prospectus necessary to resume sales.



6. INDEMNIFICATION AND CONTRIBUTION




     (a) The Company agrees to indemnify and hold harmless (i) each Holder of Registrable Shares
and any underwriter (as determined in the Securities Act) for such Holder (including, if
applicable, FBR), (ii) each Person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act), any such Person described in clause (i) (any
of the Persons referred to in this clause (ii) being hereinafter referred to as a “Controlling
Person”), and (iii) the respective officers, directors, partners, members, employees,
representatives and agents of any such Person or any Controlling Person (any Person referred to in
clause (i), (ii) or (iii) may hereinafter be referred to as a “Purchaser Indemnitee”), to
the fullest extent lawful, from and against any and all losses, claims, damages, judgments,
actions, out-of-pocket expenses, and other liabilities (the “Liabilities”), including
without limitation and as incurred, reimbursement of all reasonable costs of investigating,
preparing, pursuing or defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable fees and expenses of
counsel to any Purchaser Indemnitee, joint or several, directly or indirectly related to, based
upon, arising out of or in connection with any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (as amended or supplemented if
the Company shall have furnished to such Purchaser Indemnitee any amendments or supplements
thereto), or any preliminary Prospectus or any other document used by the Company to sell the
Shares, or any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, except insofar as such Liabilities arise out of or are based upon (i)
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with information relating to any Purchaser Indemnitee furnished to the Company or any
underwriter in writing by such Purchaser Indemnitee expressly for use therein, or (ii) any untrue
statement contained in or omission from a preliminary Prospectus if a copy of the Prospectus (as
then amended or supplemented, if the Company shall have furnished to or on behalf of the Holder
participating in the distribution relating to the relevant Registration Statement any amendments or
supplements thereto) was not sent or given by or on behalf of such Holder to the Person asserting
any such Liabilities who purchased Shares, if such Prospectus (or Prospectus as amended or
supplemented) is required by law to be sent or given at or prior to the written confirmation of the
sale of such Shares to such Person and the untrue statement contained in or omission from such
preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented). The Company shall notify the Holders promptly of the institution, threat or
assertion of any claim, proceeding (including any governmental investigation), or litigation of which it shall have become aware
in connection with the matters addressed by this Agreement which involves the Company or a



18









 




Purchaser Indemnitee. The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of any Purchaser Indemnitee.




     (b) In connection with any Registration Statement in which a Holder of Registrable Shares is
participating, such Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, each Person who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act and the respective partners, directors, officers, members,
representatives, employees and agents of such Person or Controlling Person to the same extent as
the foregoing indemnity from the Company to each Purchaser Indemnitee, but only with reference to
untrue statements or omissions or alleged untrue statements or omissions made in reliance upon and
in strict conformity with information relating to such Purchaser Indemnitee furnished to the
Company in writing by such Purchaser Indemnitee expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto or any preliminary Prospectus. The liability of
any Purchaser Indemnitee pursuant to this paragraph shall in no event exceed the net proceeds
received by such Purchaser Indemnitee from sales of Registrable Shares giving rise to such
obligations.



     (c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnity may
be sought pursuant to paragraph (a) or (b) above, such Person (the “Indemnified Party”)
shall promptly notify the Person against whom such indemnity may be sought (the “Indemnifying
Party”), in writing of the commencement thereof (but the failure to so notify an Indemnifying
Party shall not relieve it from any liability which it may have under this Section 6, except to the
extent the Indemnifying Party is prejudiced by the failure to give notice), and the Indemnifying
Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may
reasonably designate in such proceeding and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such proceeding. Notwithstanding the foregoing, in any such
proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the contrary,
(ii) the Indemnifying Party failed within a reasonable time after notice of commencement of the
action to assume the defense and employ counsel reasonably satisfactory to the Indemnified Party,
(iii) the Indemnifying Party and its counsel do not actively and vigorously pursue the defense of
such action or (iv) the named parties to any such action (including any impleaded parties), include
both such Indemnified Party and the Indemnifying Party, or any Affiliate of the Indemnifying Party,
and such Indemnified Party shall have been reasonably advised by counsel that, either (x) there may
be one or more legal defenses available to it which are different from or additional to those
available to the Indemnifying Party or such Affiliate of the Indemnifying Party or (y) a conflict
may exist between such Indemnified Party and the Indemnifying Party or such Affiliate of the
Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume nor
direct the defense of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel), for all such Indemnified Parties,



19









 




which firm shall be designated in writing by those Indemnified Parties who sold a majority of
the Registrable Shares sold by all such Indemnified Parties and any such separate firm for the
Company, the directors, the officers and such control Persons of the Company as shall be designated
in writing by the Company). The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be unreasonably withheld,
but if settled with such consent or if there is a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify any Indemnified Party from and against any loss or liability
by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the subject matter of such
proceeding.




     (d) If the indemnification provided for in paragraphs (a) and (b) of this Section 6 is for any
reason held to be unavailable to an Indemnified Party in respect of any Liabilities referred to
therein (other than by reason of the exceptions provided therein) or is insufficient to hold
harmless a party indemnified thereunder, then each Indemnifying Party under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Liabilities (i) in such proportion as is
appropriate to reflect the relative benefits of the Indemnified Party on the one hand and the
Indemnifying Party(ies) on the other in connection with the statements or omissions that resulted
in such Liabilities, 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 Indemnifying Party(ies) and the
Indemnified Party, as well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and any Purchaser Indemnitees on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by such Purchaser Indemnitees and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.



     (e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if such Indemnified Parties were treated as
one entity for such purpose), or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph 6(d) above. The amount paid or payable by an
Indemnified Party as a result of any Liabilities referred to paragraph 6(d) shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or other expenses
actually incurred by such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, in no event shall a Purchaser
Indemnitee be required to contribute any amount in excess of the amount by which proceeds received
by such Purchaser Indemnitee from sales of Registrable Shares exceeds the amount of any damages
that such Purchaser Indemnitee has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of this Section 6, each
Person, if any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act) FBR or a Holder of Registrable Shares shall



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have the same rights to contribution as FBR or such Holder, as the case may be, and each Person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act) the Company, and each officer, director, member, partner, employee, representative and agent
of the Company shall have the same rights to contribution as the Company. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may be made against
another party or parties, notify each party or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this Section 6 or
otherwise, except to the extent that any party is materially prejudiced by the failure to give
notice. 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.




     (f) The indemnity and contribution agreements contained in this Section 6 will be in addition
to any liability which the Indemnifying Parties may otherwise have to the Indemnified Parties
referred to above. The Purchaser Indemnitees’ obligations to contribute pursuant to this Section 6
are several in proportion to the respective number of Shares sold by each of the Purchaser
Indemnitees hereunder and not joint.



7. MARKET STAND-OFF AGREEMENT




     (a) Each Holder hereby agrees that it shall not, to the extent requested by the Company or an
underwriter of securities of the Company, directly or indirectly sell, offer to sell (including
without limitation any short sale), contract to sell, pledge, grant any option, otherwise transfer
or dispose of, enter into any transaction which is designed to, or might reasonably be expected to,
result in the disposition of any Registrable Shares or other shares of Common Stock of the Company
or any securities convertible into or exchangeable or exercisable for shares of Common Stock of the
Company then owned by such Holder (other than to donees or partners of the Holder who agree to be
similarly bound) for a period of sixty (60) days following the effective date of an IPO
Registration Statement of the Company filed under the Securities Act; provided, however, that:



          (i) the restrictions above shall not apply to Registrable Shares sold pursuant to the IPO
Registration Statement;




          (ii) all executive officers and directors of the Company then holding shares of Common Stock
of the Company or securities convertible into or exchangeable or exercisable for shares of Common
Stock of the Company enter into similar agreements;




          (iii) the Holders shall be allowed any concession or proportionate release allowed to any
officer or director that entered into similar agreements (with such proportion being determined by
dividing the number of shares being released with respect to such officer or director by the total
number of issued and outstanding shares held by such officer or director); provided, that nothing
in this Section 7(a)(iii) shall be construed as a right to proportionate release for the executive
officers and directors of the Company upon the expiration of the 60-day




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period applicable to all Holders other than the executive officers and directors of the Company;
and




          (iv) this Section 7 shall not be applicable if a Shelf Registration Statement of the Company
filed under the Securities Act has been declared effective prior to the filing of an IPO
Registration Statement.




     (b) In order to enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the securities subject to this Section 7 and
to impose stop transfer instructions with respect to the Registrable Shares and such other
securities of each Holder (and the securities of every other Person subject to the foregoing
restriction) until the end of such period.



8. TERMINATION OF THE COMPANY’S OBLIGATION




     The Company shall have no obligation pursuant to this Agreement with respect to any
Registrable Shares proposed to be sold by a Holder in a registration pursuant to this Agreement if,
in the opinion of counsel to the Company, all such Registrable Shares proposed to be sold by a
Holder may be sold in a three-month period without registration under the Securities Act pursuant
to Rule 144 under the Securities Act.



9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS




     From and after the date of this Agreement, the Company shall not, without the prior written
consent of the Holders beneficially owning not less than a majority of the then outstanding
Registrable Shares (provided, however, that for purposes of this Section 9, Registrable Shares that
are owned, directly or indirectly, by an Affiliate or employee of the Company shall not be deemed
to be outstanding), enter into any agreement with any holder or prospective holder of any Common
Stock of the Company that would allow such holder or prospective holder (a) to include such Common
Stock in any Registration Statement filed pursuant to the terms hereof, unless under the terms of
such agreement, such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not reduce the amount of
Registrable Shares of the Holders that is included, or (b) to have its Common Stock registered on a
registration statement that could be declared effective prior to, or within one hundred eighty
(180) days of, the effective date of any Registration Statement filed pursuant to this Agreement.



10. MISCELLANEOUS




     (a) Remedies. In the event of a breach by the Company of any of its obligations under
this Agreement, each Holder, in addition to being entitled to exercise all rights provided herein
or, in the case of FBR, in the Purchase/Placement Agreement, or granted by law, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. Subject
to Section 6, the Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.



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     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, without the written consent of the Company
and Holders beneficially owning not less than a majority of the then outstanding Registrable
Shares; provided, however, that for purposes of this Section 10(b), Registrable Shares that are
owned, directly or indirectly, by an Affiliate or employee of the Company shall not be deemed to be
outstanding. No amendment shall be deemed effective unless it applies uniformly to all Holders.
Notwithstanding the foregoing, a waiver or consent to or departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of a Holder whose securities are being
sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders may be given by such Holder; provided that the
provisions of this sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.



     (c) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing or delivered by facsimile (with receipt confirmed), overnight courier or
registered or certified mail, return receipt requested, or by telegram:



          (i) if to a Holder, at the most current address given by the transfer agent and registrar of
the Shares to the Company, with a copy to FBR at:



Friedman Billings Ramsey & Co., Inc.

10011 19th Street North

Arlington, VA 22209

Facsimile: (703) 312-9698




          (ii) if to the Company at the offices of the Company at:



Horsehead Holding Corp.

300 Frankfort Road

Monaca, PA 15061-2295

Facsimile: (724) 774-4348



with a copy to:



Kirkland & Ellis LLP

200 East Randolph Drive, 54th Floor

Chicago, IL 60601

Attention: James S. Rowe

Facsimile: (312) 861-2200




     (d) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto, including, without
limitation and without the need for an express assignment or assumption, subsequent Holders.
The Company agrees that the Holders shall be third party beneficiaries to the agreements made



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hereunder by FBR and the Company, and each Holder shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights
hereunder; provided, however, that such Holder fulfills all of its obligations hereunder.




     (e) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.



     (f) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.



     (g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE COURT IN THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING IN NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.



     (h) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
hereto that they would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.



     (i) Entire Agreement. This Agreement, together with the Purchase/Placement Agreement,
is intended by the parties hereto as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein.



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     (j) Registrable Shares Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Shares is required hereunder,
Registrable Shares held by the Company or its Affiliates shall not be counted in determining
whether such consent or approval was given by the Holders of such required percentage.



     (k) Adjustment for Stock Splits, etc. Wherever in this Agreement there is a reference
to a specific number of shares with respect to any Registrable Shares, then upon the occurrence of
any subdivision, combination, or stock dividend of such shares, the specific number of shares with
respect to any Registrable Shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such class or series of
stock by such subdivision, combination, or stock dividend.



     (l) Survival. This Agreement is intended to survive the consummation of the
transactions contemplated by the Purchase/Placement Agreement. The indemnification and
contribution obligations under Section 6 of this Agreement shall survive the termination of the
Company’s obligations under Section 2 of this Agreement.



     (m) Attorneys’ Fees. In any action or proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, shall be entitled to recover its reasonable attorneys’ fees in
addition to any other available remedy.



     (n) WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND
UNCONDITIONALLY WAIVES 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.



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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	HORSEHEAD HOLDING CORP.

 	 
	 	By:  	/s/ James M. Hensler
 	 
	 	Name: 	James M. Hensler 	 
	 	Title: 	President and CEO 	 
	 
	 	FRIEDMAN, BILLINGS, RAMSEY & CO., INC.

 	 
	 	By:  	/s/ James R. Kleeblatt
 	 
	 	Name: 	James R. Kleeblatt 	 
	 	Title: 	Senior Managing Director 	 
	 




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