1
EXHIBIT 4(g)
[FORM OF REGISTRATION RIGHTS AGREEMENT]
13 3/8% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE DECEMBER 31, 2003
REGISTRATION RIGHTS AGREEMENT
Dated as of June __, 2001
between
COEUR D'XXXXX XXXXX CORPORATION
as Issuer,
and
XXXXXXXXX XXXXXXXX, INC.
as Dealer Manager and Placement Agent
2
This Registration Rights Agreement ("Agreement") is made and entered
into as of June __, 2001, between Coeur d'Xxxxx Xxxxx Corporation, an Idaho
corporation (the "Company") and Xxxxxxxxx Xxxxxxxx, Inc., ("Xxxxxxxxx
Xxxxxxxx"). Pursuant to the Dealer Manager Agreement (the "Dealer Manager
Agreement") and the Placement Agreement (the "Placement Agreement"), each
dated as of June __, 2001 and June __, 2001 respectively, between the Company
and Xxxxxxxxx Xxxxxxxx which provide as (a) Dealer Manager, you are engaged to
solicit individuals and institutions to tender their Debentures (as defined
below) pursuant to and in accordance with the terms and conditions of the
Exchange Offer (as defined below), and as (b) Placement Agent, for the Cash
Offer (as defined below) you are acting as the sole agent for the Company and
not as principal, to solicit offers to purchase additional 13 3/8% Convertible
Senior Subordinated Notes due December 31, 2003 (the "Exchange Notes") from
the Company from holders who elect to participate in the Exchange Offer. In
order to induce Xxxxxxxxx Xxxxxxxx to enter into this Agreement, the Company
has agreed to provide Xxxxxxxxx Xxxxxxxx the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Dealer Manager Agreement and the Placement Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Advice: As defined in Section 2(d) hereof.
Affiliate: An affiliate of any specified person shall mean any
other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the purposes
of this definition, "control," when used with respect to any person, means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: This Registration Rights Agreement, as the same may
be amended, supplemented or modified from time to time in accordance with the
terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
Cash Offer: The offer of up to $25.0 million aggregate
principal amount of the Company's 13 3/8% Convertible Senior Subordinated Notes
due December 31, 2003 being issued for cash.
Closing Date: __________, 2001
Common Stock: Common Stock, $1.00 par value per share, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, in each case, as issuable or issued upon
conversion of the Compensation Exchange Notes.
1
3
Company: Coeur d'Xxxxx Xxxxx Corporation, an Idaho
corporation, and any successor corporation thereto.
Compensation Exchange Notes: The $[_____________] aggregate
principal amount of the Company's 13 3/8% Convertible Senior Subordinated Notes
due December 31, 2003 being issued as compensation to Xxxxxxxxx Xxxxxxxx
pursuant to the Dealer Manager Agreement and which may be issued pursuant to
the Placement Agreement.
Compensation Securities: The Compensation Exchange Notes and
the shares of Common Stock into which such Compensation Exchange Notes are
converted or convertible (including any shares of Common Stock issued or
issuable thereon upon any stock split, stock combination, stock dividend or
the like) upon original issuance thereof, and at all times subsequent thereto,
and associated related rights, if any, until, in the case of any such
Compensation Exchange Note or shares of Common Stock (and associated rights)
(i) the date on which the resale thereof has been effectively registered under
the Securities Act and disposed of in accordance with the Registration
Statement relating thereto, (ii) the date on which such security has been
distributed to the public pursuant to Rule 144 or is saleable pursuant to
paragraph (k) of Rule 144 or (iii) the date on which such security ceases to
be outstanding, whichever date is earliest.
Controlling person: As defined in Section 5(a) hereof.
Dealer Manager Agreement: As defined in the first paragraph
hereof.
Debentures: The $26,096,000 aggregate principal amount of the
Company's outstanding 6% Convertible Subordinated Debentures due June 10,
2002; the $92,860,000 aggregate principal amount of the Company's outstanding
6 3/8% Convertible Subordinated Debentures due January 31, 2004; and the
$69,180,000 aggregate principal amount of the Company's outstanding 7 1/4%
Convertible Subordinated Debentures due October 31, 2005.
Effectiveness Period: As defined in Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Exchange Offer: The Company's offer to exchange the Exchange
Notes for the Debentures.
Holder: The Dealer Manager or Placement Agent for as long as
it owns any Compensation Securities.
Indemnified Person: As defined in Section 5(a) hereof.
Indenture: The Indenture, dated as of ________, 2001, between
the Company and the Trustee, pursuant to which the Compensation Exchange Notes
to be issued to the Holder are being issued, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
thereof.
2
4
Placement Agreement: As defined in the first paragraph hereof.
Proceeding: An action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the resale of any of the Compensation Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all materials
incorporated by reference or deemed to be incorporated by reference, if any,
in such prospectus.
Registration Statement: Any registration statement of the
Company filed with the SEC pursuant to the Securities Act that covers the
resale of any of the Compensation Securities 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.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Scheduled Effectiveness Target Date: 1 year following the
Closing Date.
Shelf Registration Statement: As defined in Section 2(a)
hereof.
Special Counsel: The special counsel to the Holder.
TIA: The Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Trustee: The trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in connection with which securities of the Company are sold to
one or more underwriters for reoffering to the public pursuant to an effective
Registration Statement.
3
5
2. Shelf Registration Statement
(a) Upon written request of the Holder (such written request
to be made no later than 3 months prior to the Scheduled Effectiveness Target
Date if and to the extent the Holder desires to sell such Holder's
Compensation Securities on or shortly after the Scheduled Effectiveness Target
Date) the Company agrees to file with the SEC (i) a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Compensation Securities or (ii) separate Registration Statements for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Compensation Exchange Notes and all of the Common Stock constituting
Compensation Securities (such Registration Statement or Statements are
collectively referred to herein as the "Shelf Registration Statement"). Each
Shelf Registration Statement shall be on Form S-3 under the Securities Act or
other appropriate form, such as Form S-1 or Form S-2, that is available to the
Company permitting registration of such Compensation Securities for resale by
the Holder in the manner or manners reasonably designated by such Holder
(including, without limitation, up to three underwritten offerings). The
Company shall not permit any securities other than the Compensation Securities
to be included in any Shelf Registration Statement. The Company shall use its
reasonable efforts to cause each Shelf Registration Statement to be declared
effective pursuant to the Securities Act as promptly as is practicable
following the filing thereof and to keep each Shelf Registration Statement
continuously effective under the Securities Act for two years after the date
of original issuance of any of the Compensation Exchange Notes (subject to
extension pursuant to Sections 2(d) hereof) (the "Effectiveness Period"), or
such shorter period ending when there cease to be any Compensation Securities
outstanding.
(b) Supplements and Amendments. The Company shall use its
reasonable efforts to keep each Shelf Registration Statement continuously
effective by supplementing and amending the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement, if required by
the Securities Act or by the anti-fraud provisions of the federal securities
laws or if reasonably requested by the Holder or by any underwriter of such
Compensation Securities; provided, however, that the Effectiveness Period
shall be extended to the extent provided in Section 2(d) hereof.
(c) Selling Securityholder Information. The Holder of
Compensation Securities agrees that if the Holder wishes to sell Compensation
Securities pursuant to a Shelf Registration Statement and the related
Prospectus, it will do so only in accordance with this Section 2. The Holder
of Compensation Securities wishing to sell their Compensation Securities
pursuant to a Shelf Registration Statement and the related Prospectus agrees
to provide such information regarding the distribution of its Compensation
Securities as is required by law to be disclosed by the Holder in the
applicable Registration Statement (the "Requisite Information") to the Company
prior to any intended distribution of Compensation Securities under the Shelf
Registration Statement.
If any such Registration Statement refers to the Holder by name
or otherwise as the holder of any securities of the Company, then the Holder
shall have the right to require, in the event that such reference to the
Holder by name or otherwise is not required by the Securities Act
4
6
or any similar Federal statute then in force, the deletion of the reference to
the Holder in such Registration Statement at any time subsequent to the time
that such reference ceases to be required.
(d) Certain Notices; Suspension of Sales. The Holder agrees
by acquisition of such Compensation Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof, the Holder
will forthwith discontinue disposition of such Compensation Securities covered
by such Registration Statement and Prospectus (other than in transactions
exempt from the registration requirements under the Securities Act) until the
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Sections 3(c)(i) and 3(k) hereof, or until it is advised in
writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any
such notice, the Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each Holder shall have received (x) the copies of
the supplemented or amended Prospectus contemplated by Sections 3(c)(i) and
3(j) hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
3. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such
registrations on Form X-0, Xxxx X-0 or other appropriate form to permit the
resale of Compensation Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company shall as
expeditiously as reasonably possible:
(a) No fewer than five (5) Business Days prior to the
initial filing of a Registration Statement or Prospectus and no fewer than two
(2) Business Days prior to the filing of any amendment or supplement thereto
(excluding, unless requested, any document that would be incorporated or
deemed to be incorporated therein by reference), furnish (as of the most
recent reasonably practicable date which shall not be more than two (2)
Business Days prior to the date such document is personally delivered,
delivered to a next-day courier, deposited in the mail or telecopied, as the
case may be) to the registered holder, Special Counsel and the managing
underwriters, if any, copies of all such documents proposed to be filed and
cause the officers and directors of the Company, counsel to the Company and
independent certified public accountants to the Company to respond to such
inquiries as shall be necessary in connection with such Registration
Statement, in the opinion of Special Counsel and counsel to such underwriters,
to conduct a reasonable investigation within the meaning of the Securities
Act. The Company shall not file any such Registration Statement or related
Prospectus or any amendments or supplements thereto to which the Holder or the
managing underwriters, if any, shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary
to keep such Registration Statement continuously effective for the applicable
time period set forth in Section 2(a) hereof;
5
7
cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented, to be filed pursuant to Rule 424 under the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended method or methods of disposition by the Holder
set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented (including, without limitation, the filing of any
Prospectus supplement pursuant to Rule 424 in order to add or change any
selling security holder information);
(c) Notify (as of the most recent reasonably practicable
date which shall not be more than two (2) Business Days prior to the date such
notice is personally delivered, delivered to a next-day courier, deposited in
the mail or telecopied, as the case may be) the Holder, Special Counsel and
the managing underwriters, if any, promptly (and in the case of an event
specified by clause (i)(A) of this paragraph in no event fewer than two (2)
Business Days prior to such filing), and (if requested by any such person),
confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed, and, (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request of the SEC or any other Federal
or state governmental authority for amendments or supplements to such
Registration Statement or related Prospectus or for additional information
related thereto, (iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order,
order or injunction suspending or enjoining the use or the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose, (iv) if at any time any of the representations and warranties of the
Company contained in any agreement (including any underwriting agreement)
contemplated by Section 3(k) hereof are not true and correct in all material
respects, (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any
of the Compensation Securities for sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, and (vi) of the existence
of any fact and the happening of any event that makes any statement made in
such Registration Statement or related Prospectus untrue in any material
respect, or that requires the making of any changes in such Registration
Statement or Prospectus so that in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and that, in the case of the Prospectus,
such Prospectus will not contain any untrue statement of a material fact or
omit to state any 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;
(d) Use its reasonable efforts to avoid the issuance of, or,
if issued, obtain the withdrawal of any stop order or order enjoining or
suspending the use or effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from qualification) of
any of the Compensation Securities for sale in any jurisdiction, at the
earliest practicable moment;
(e) If requested by the Holder, Special Counsel, or the
managing underwriters, if any, (i) promptly include in a Prospectus supplement
or post-effective amendment such information as the Special Counsel and the
managing underwriters, if any, agrees should be
6
8
included therein, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be included in
such Prospectus supplement or post-effective amendment; provided, however,
that the Company shall not be required to take any action pursuant to this
Section 3(e) that would, in the opinion of counsel for the Company, violate
applicable law or which is not reasonably required to comply with applicable
securities laws;
(f) Furnish to the Holder, Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, including financial
statements;
(g) Deliver to the Holder, the Special Counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of Prospectus) and each amendment or
supplement thereto to as such persons may reasonably request; and, unless the
Company shall have given notice to the Holder pursuant to Section 3(c)(vi),
the Company hereby consents to the use of such Prospectus and each amendment
or supplement thereto by the Holder and the underwriters, if any, in
connection with the offering and sale of the Compensation Securities covered
by such Prospectus and any amendment or supplement thereto, provided, however,
that the Holder shall not be entitled to use the Prospectus unless and until
the Holder shall have furnished to the Company any and all Requisite
Information pursuant to Section 2(c) hereof;
(h) Use its best efforts to register or qualify, or
cooperate with the Holder, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of, such Compensation Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as the Holder or underwriter reasonably requests in
writing; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary legally to enable
the disposition in such jurisdictions of the Compensation Securities covered
by the applicable Registration Statement; provided, however, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or subject the Company to any tax in any such jurisdiction where it is
not then so subject;
(i) Use its best efforts to cause the offering of the
Compensation Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States, except as may be reasonably required as a consequence of the
nature of the Holder's business, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be reasonably necessary to enable the seller
or sellers thereof or the underwriters, if any, to consummate the disposition
of such Compensation Securities; provided, however, that the Company shall not
be required to register the Compensation Securities in any jurisdiction that
would require the Company to qualify to do business in any jurisdiction where
it is not then so qualified, subject it to general service of process in any
such
7
9
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject;
(j) Upon the occurrence of any event contemplated by Section
3(c)(vi) hereof, as promptly as reasonably practicable, prepare a supplement
or amendment, including, if appropriate, a post-effective amendment, to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, such
Prospectus will not contain an 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 light of the circumstances under which they were made,
not misleading;
(k) Enter into such agreements (including any underwriting
agreements in form, scope and substance as are customary in underwritten
offerings) reasonably satisfactory to the Company and take all such other
reasonable actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or the Holder) in order to
expedite or facilitate the sale of such Compensation Securities; provided,
however, that the Company is required to facilitate no more than three
underwritten offerings. In connection with an underwritten offering, the
Company shall (i) make such representations and warranties to the Holder and
the underwriters, if any, with respect to the business of the Company and its
subsidiaries (including with respect to businesses or assets acquired or to be
acquired by any of them), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and reasonably acceptable to
the Company, and confirm the same if and when requested; (ii) seek to obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, and Special Counsel to the Holder),
addressed to the selling Holder of Compensation Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings (including any such matters as may be
reasonably requested by such Special Counsel and underwriters); (iii) use all
reasonable efforts to obtain customary "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed (where reasonably possible) to the
selling Holder of Compensation Securities and each of the underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; (iv) assure that if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less favorable
to the selling Holder of Compensation Securities and the underwriters, if any,
than those set forth in Section 5 hereof; and (v) deliver such documents and
certificates as may be reasonably requested by the Holder, their Special
Counsel or the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to clause (i) of
this Section 3(k) and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company;
8
10
(l) Make available for inspection by a representative of the
Holder any underwriter participating in any such disposition of Compensation
Securities, if any, and any attorney, consultant or independent certified
public accountant retained by the selling Holder or underwriter, at the
offices where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries as they may reasonably request, and cause the officers,
directors, agents and employees of the Company and its subsidiaries to supply
all information in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Registration Statement, provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the time of
delivery or inspection (as the case may be) of such information shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to Federal
securities laws in connection with the filing of any Registration Statement or
the use of any Prospectus), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to safeguard
by any such person or (iv) such information becomes available to any such
person from a source other than the Company and such source is not bound by a
confidentiality agreement.
4. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registration Statement is filed or becomes effective and
regardless of whether any securities are offered or sold pursuant to any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (A) with respect to
filings required to be made with the National Association of Securities
Dealers, Inc., and (B) in compliance with securities or Blue Sky laws
(including, without limitation and in addition to that provided for in (b)
below, reasonable fees and disbursements of counsel for the underwriters or
Special Counsel in connection with Blue Sky qualifications of the Compensation
Securities and determination of the eligibility of the Compensation Securities
for investment under the laws of such jurisdictions as the managing
underwriters, if any, or the Holder, may designate)), (ii) printing expenses
(including, without limitation, printing Prospectuses if the printing of
Prospectuses is required by the managing underwriters, if any, or by the
Holder), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and the Special Counsel (plus any
local counsel deemed appropriate by the Holder) in accordance with the
provisions of Section 4(b) hereof, (v) fees and disbursements of all
independent certified public accountants referred to in Section 3(k) and 3(l)
(including, without limitation, the expenses of any special audit and
"comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Company desires such insurance, and
(vii) fees and expenses of all other persons retained by the Company. In
addition, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of an annual audit and the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange or the
9
11
Nasdaq National Market. Notwithstanding anything in this Agreement to the
contrary, the Holder shall pay all underwriting discounts and brokerage
commissions with respect to any Compensation Securities sold by it.
(b) In connection with any registration hereunder, the
Company shall reimburse the Holder for the reasonable fees and disbursements
of not more than one firm of attorneys representing the selling Holder, which
firm shall initially be Shearman & Sterling until such time as another firm
shall be agreed to in writing between the Company and the Holder.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i)
the Holder; (ii) each person, if any, who controls or is controlled by (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) the Holder (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"); (iii) each affiliate, if
any; and (iv) the respective officers, directors, partners, employees,
representatives and agents of the Holder (including any predecessor Holder),
or any controlling person (any person referred to in clause (i), (ii), (iii)
or (iv) may hereinafter be referred to as an "Indemnified Person"), from and
against any and all losses, claims, damages, liabilities, expenses and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of
any Prospectus or supplement thereto, in light of the circumstances under
which they were made) not misleading, except insofar as such losses, claims,
damages, liabilities, expenses or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished to the Company by or
on behalf of such Indemnified Person expressly for use therein; provided,
however, that the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Indemnified Person from whom
the person asserting such losses, claims, damages, liabilities, expenses and
judgments purchased securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary Prospectus is eliminated
or remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person, whether as a result of
negligence or otherwise.
(b) In case any action shall be brought against any
Indemnified Person based upon any Registration Statement or any such
Prospectus or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Company, such Indemnified Person shall
promptly notify the Company in writing and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Person and payment of all fees and expenses. Any
Indemnified Person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person, unless (i)
the employment of such counsel shall have been specifically authorized in
writing by the Company, (ii) the Company shall have failed to assume the
defense and employ counsel or
10
12
(iii) such Indemnified Person or Persons shall have been advised by counsel
that there may be a conflict between the positions of the indemnifying party
or parties and of the indemnified party or parties in conducting the defense
of such action or proceeding or that there may be legal defenses available to
such Indemnified Person or Persons different from or in addition to those
available to the indemnifying party or parties (in which case the Company
shall not have the right to assume the defense of such action on behalf of
such Indemnified Person, it being understood, however, that the Company 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 Persons, which firm shall be designated in writing by
such Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without its written consent, but if
settled with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Indemnified Person from and against any loss
or liability by reason of such settlement. 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.
(c) In connection with any Registration Statement pursuant
to which the Holder (or predecessor Holder) sold or offered for resale
Compensation Securities, the Holder (or predecessor Holder) agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors,
its officers and any person controlling or who is controlled by the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, including affiliates, to the same extent as the foregoing
indemnity from the Company to each Indemnified Person but only with reference
to information relating to such Indemnified Person furnished by or on behalf
of such Indemnified Person expressly for use in such Registration Statement.
In case any action shall be brought against the Company, any of its directors,
any such officer or any person controlling the Company based on such
Registration Statement and in respect of which indemnity may be sought against
any Indemnified Person, the Indemnified Person shall have the rights and
duties given to the Company (except that if the Company shall have assumed the
defense thereof, such Indemnified Person shall not be required to do so, but
may employ separate counsel therein and participate in defense thereof but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person), and the Company, its directors, any such officers and any person
controlling the Company shall have the rights and duties given to the
Indemnified Person by Section 5(b) hereof.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities, expenses or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, expenses and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Indemnified Person on the other hand pursuant to the Dealer
Management Agreement or the
11
13
Placement Agreement or from the offering for resale of the Compensation
Securities 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 and each such Indemnified Person in connection
with the statements or omissions that resulted in such losses, claims,
damages, liabilities, expenses or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and each such
Indemnified Person shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company or such Indemnified Person and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Holder agree that it would not be
just and equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation (even if the Indemnified Person 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, liabilities, expenses or
judgments 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 5, no Indemnified Person shall be required to
contribute any amount in excess of the amount by which the total net profit
received by it in connection with the sale of the Compensation Securities
pursuant to this Agreement exceeds the amount of any damages which such
Indemnified Person has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. 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. The Indemnified Persons'
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective amount of Compensation Securities included in and
sold pursuant to any such Registration Statement by each Indemnified Person
and not joint.
6. Rule 144.
The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at
any time it is not required to file such reports but in the past had been
required to or did file such reports, it will, upon the request of the Holder,
make available other information as required by, and so long as necessary to
permit sales of, its Compensation Securities pursuant to Rule 144.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
7. Underwritten Registrations.
If any of the Compensation Securities covered by any Shelf
Registration Statement are sold in an underwritten offering, the investment
banker or investment bankers and
12
14
manager or managers that will administer the offering will be investment
bankers of recognized national standing selected by the Holder.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Compensation
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by
a Holder of any of their respective obligations under this Agreement, the
Holder or the Company, in addition to being entitled to exercise all rights
granted by law, including, without limitation, recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Company and the Holder agree 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, they shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with
the rights granted to the Holder in this Agreement or otherwise conflicts with
the provisions hereof. The Company is not currently a party to any agreement
granting any registration rights with respect to any of its securities to any
person that conflicts with the Company's obligations hereunder or gives any
other party the right to include any securities in any Registration Statement
filed pursuant hereto, except for such rights and conflicts as have been
irrevocably waived.
(c) No Adverse Action Affecting the Compensation Securities.
The Company will not take any action with respect to the Compensation
Securities that would adversely affect the ability of the Holder to include
such Compensation Securities in a registration undertaken pursuant to this
Agreement.
13
15
(d) 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 departures from the
provisions hereof, may not be given, without the written consent of the
Holder; provided, however, that, for the purposes of this Agreement,
Compensation Securities that are owned, directly or indirectly, by either the
Company or an affiliate of the Company are not deemed outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of a Holder whose Compensation Securities are being sold pursuant to an
underwritten offering and that does not directly or indirectly affect the
rights of other Holders may be given by the Holder of the Compensation
Securities being sold by such Holder pursuant to such an underwritten
offering; provided, however, that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(e) Notices. All notices and other communications provided
for herein shall be made in writing by hand-delivery; next day air courier;
certified first-class mail, return receipt requested or telecopy:
(i) if to a Holder, to the address of the Holder as
it appears in the Note or Common Stock register
of the Company, as applicable;
(ii) if to the Company, to:
COEUR D'XXXXX XXXXX CORPORATION
400 Coeur d'Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Senior Vice President and
Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxx & Lardner
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
14
16
(iii) if to the Special Counsel, to:
Shearman & Sterling
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Abigail Arms, Esq.
Telecopy No.: (000) 000-0000
or such other Special Counsel at such other address and telecopy number as a
majority in aggregate principal amount of the Compensation Securities shall
have given notice to the Company as contemplated by Section 3(b) hereof.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given, when delivered by
hand, if personally delivered; one (1) Business Day after being timely
delivered to a next-day air courier; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of the successor and
permitted assign of the Holder. The Holder may transfer its rights hereunder
in whole but not in part. The Company may not assign its rights or obligations
hereunder without the prior written consent of the Holder of the Compensation
Securities, other than by operation of law pursuant to a merger or
consolidation to which the Company is a party. In the event the Compensation
Notes constituting Compensation Securities become convertible into common
stock of another person pursuant to Section 15.6 of the Indenture, the Company
shall cause such person to assume the Company's obligations hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts by the parties hereto, 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 instrument.
(h) 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.
(i) Severability. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. 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 best 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 that they
15
17
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.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(k) 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.
16
18
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
COEUR D'XXXXX XXXXX CORPORATION
By:
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
The foregoing Registration Rights
Agreement is hereby confirmed and agreed
to as of the date first written above:
XXXXXXXXX XXXXXXXX, INC.
By: XXXXXXXXX XXXXXXXX, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
