EXHIBIT 10(b)
Coeur d'Xxxxx Xxxxx Corporation
7 1/4% Convertible Subordinated Debentures
due 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of
October 15, 1997
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Coeur d'Xxxxx Xxxxx Corporation, an Idaho corporation (the "Company"),
proposes to issue and sell to the Purchaser (as defined herein) upon the terms
set forth in a purchase agreement dated October 7, 1997 (the "Purchase
Agreement") between the Purchaser and the Company, its 7 1/4% Convertible
Subordinated Debentures due 2005 (the "Securities"). As an inducement to the
Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchaser thereunder, the Company agrees
with the Purchaser (i) for the benefit of the Purchaser and (ii) for the
benefit of the holders from time to time of the Securities and the Common
Stock, par value $1.00 per share (the "Common Stock"), of the Company issuable
upon conversion of the Securities (collectively, the "Registrable
Securities"), including the Purchaser (each of the foregoing a "Holder" and,
together, the "Holders"), as follows:
SECTION 1. DEFINITIONS. (a) Capitalized terms used herein without
definition shall have their respective meanings set forth in or pursuant to
the Purchase Agreement or the Offering Circular, dated October 8, 1997, in
respect of the Securities. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause
the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Commission" means the United States Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2 hereof.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(3)
hereof.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
"Indenture" means the Indenture, dated as of October 15, 1997, between
the Company and Bankers Trust Company, as amended and supplemented from
time to time in accordance with is terms.
"Issue Date" has the meaning set forth in Section 2 hereof.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if
any, as set forth in Section 6 hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
2
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act),
as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Securities.
"Purchaser" means Lazard Freres & Co. LLC.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the
shares of Common Stock issuable upon conversion of such Securities,
including any Securities initially issued in bearer form and constituting
the unsold allotment of a distributor (within the meaning of Regulation S
under the Securities Act) of such Securities and later exchanged for
Securities in registered form; PROVIDED, HOWEVER, that a security ceases to
be a Registrable Security when it is no longer a Restricted Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of
Common Stock which (i) has been effectively registered under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement,
(ii) has been transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto), (iii) has been sold in compliance
with Regulation S under the Securities Act (or any successor thereto) and
does not constitute the unsold allotment of a distributor within the
meaning of Regulation S under the Securities Act, or (iv) has otherwise
been transferred and a new Security or share of Common Stock not subject to
transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company in accordance with Section 2.06 of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
3
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities, Common Stock shall be
treated as representing the principal amount of Securities which was
surrendered for conversion or exchange in order to receive such number of
shares of Common Stock.
SECTION 2. SHELF REGISTRATION. (a) The Company shall, within 90 days
following the date of original issuance (the "Issue Date") of the
Securities, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution elected by
such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use its best efforts to cause such Shelf Registration
Statement to be declared effective under the Act within 150 calendar days
after the Issue Date; PROVIDED, however, that no Holder shall be entitled
to have the Registrable Securities held by it covered by such Shelf
Registration unless such Holder is an Electing Holder.
(b) The Company shall use its best efforts:
(i) to keep the Shelf Registration Statement con tinuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders
until October 31, 1999 or such shorter period that will terminate upon the
earlier of the following: (A) when all the Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or (B) when all shares of Common
4
Stock issued upon conversion of any such Securities that had not been sold
pursuant to the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (in either such case, such period being called
the "Effectiveness Period"); and
(ii) after the date the Shelf Registration Statement becomes effective,
within 35 days after the request of any holder of Registrable Securities
that is not then an Electing Holder, to take any action necessary and
required by law to enable such holder to use the Prospectus forming a part
thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement; PROVIDED, HOWEVER, that
nothing in this subparagraph shall relieve such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof; and
(iii) if at any time, the Securities, pursuant to Article V of the
Indenture, are convertible into securities other than Common Stock, the
Company shall, or shall cause any successor under the Indenture to, cause
such securities to be included in the Shelf Registration Statement no later
than the date on which the Securities may then be convertible into such
securities.
The Company shall be deemed not to have used its best efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any
such Registrable Securities during that period, unless (i) such action in
required by applicable law, or (ii) the continued effectiveness of the Shelf
Registration Statement would require the Company to disclose a material
financing, acquisition or other corporate trans action, and the Board of
Directors shall have determined in good faith that such disclosure is not in
the best interests of the Company and its stockholders; provided that in the
case of clause (i) above, the Company thereafter must promptly comply with the
requirements of paragraph 3(j) below, if applicable and in the case of clauses
(i) and (ii) above, the Company shall be entitled to suspend the use of
5
any prospectus forming a part of an effective Registration Statement under
this Section 2 for a reasonable period of time (a "DELAY PERIOD"), except that
the aggregate number of days included in all Delay Periods during any
consecutive 12 months shall not exceed the aggregate of 90 days (whether or
not consecutive).
SECTION 3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) (1) Not less than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the holders of Registrable Securities. No holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to use the
Prospectus forming a part thereof for resales of Registrable Securities at any
time, unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth therein;
PROVIDED, HOWEVER, holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is first
mailed to such holders to return a completed and signed Notice and
Questionnaire to the Company.
(2) After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder. The Company shall not be required to take
any action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the Prospectus
forming a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire to
the Company.
(3) The term "Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
6
(b) The Company shall furnish to the Purchaser, prior to the filing
thereof with the Commission, a copy of any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein.
(c) The Company shall promptly take such action as may be necessary so
that (i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in
each case) complies in all material respects with the Securities Act and
the Exchange Act and the respective rules and regulations thereunder, (ii)
any Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, 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 not misleading and (iii) any Prospectus forming
part of any Shelf Registration Statement, and any amendment or supplement
to such Prospectus, does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements,
in the light of the circumstances under which they were made, not
misleading.
(d) (1) The Company shall advise the Purchaser and, in the case of clause
(i), the Electing Holders, and, if requested by the Purchaser or any such
Electing Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the Prospectus included therein or
for additional information.
(2) The Company shall advise the Purchaser and the Electing Holders and,
if requested by the Purchaser or any such Electing Holder, confirm such
advice in writing of:
7
(i) the issuance by the Commission of any stop order suspending
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the initiation of any proceeding for such
purpose; and
(iii) the happening of any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus so that, as
of such date, the Shelf Registration Statement and the Prospectus do not
contain an untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its best efforts to prevent the issuance and,
if issued, to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible
time.
(f) The Company shall furnish to each Electing Holder included within the
coverage of any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Electing
Holder so requests in writing, all reports, other documents and exhibits
that are filed with or incorporated by reference in the Shelf Registration
Statement.
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder of Registrable Securities included within the coverage of
any Shelf
8
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus, if any) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Electing Holder may reasonably request; and the Company consents (except
during the continuance of any event described in Section 3(c)(2)(iii)) to
the use of the Prospectus or any amendment or supplement thereto by each of
the Electing Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto during the Shelf Registration
Period.
(h) Prior to any offering of Registrable Securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or cooperate
with the Electing Holders of Registrable Securities included therein and
their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or, if required, blue sky laws of such jurisdictions in the
United States as any such Electing Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the Registrable Securities
covered by such Shelf Registration Statement; PROVIDED, HOWEVER, that in no
event shall the Company be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to so qualify but for this Section 3(h), (ii)
file any general consent to service of process in any jurisdiction where it
is not as of the date hereof then so subject or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to any
Shelf Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Electing Holders
may request in connection with the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Company shall promptly
9
prepare a post-effective amendment to any Shelf Registration Statement or
an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company notifies the
Electing Holders of the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Electing Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(k) Not later than the effective date of any Shelf Registration Statement
hereunder, the Company shall provide a CUSIP number for the Securities
registered under such Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with all applicable
rules and regulations of the Commission, and to make generally available to
its securityholders as soon as practicable, but in any event not later than
eighteen months after (i) the effective date (as defined in Rule 158(c)
under the Securities Act) of the Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is incorporated by
reference in the Shelf Registration Statement, an earning statement of the
Company and its sub sidiaries complying with Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the
Trust Indenture Act; in connection with such qualification, the Company
shall cooperate with the Trustee under the Indenture and the Electing
Holders (as defined in the Indenture) to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company shall
execute, and shall use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so
10
qualified in a timely manner. In the event that any such amendment or
modification referred to in this Section 3(m) involves the appointment of a
new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Electing Holder of Registrable
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Electing Holder and
the distribution of such Registrable Securities as may be required by
applicable law or regulation for inclusion in such Shelf Registration
Statement and the Company may exclude from such registration the
Registrable Securities of any Electing Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include or incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters reasonably agree
should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are notified of
the matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements (including
underwriting agreements in customary form) to take all other appropriate
actions in order to expedite or facilitate the registration or the
disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those
set forth in Section 5 (or such other provisions and procedures acceptable
to the Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by the Electing Holders
of Registrable Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such
11
Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Electing Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to make
reasonably available for inspection all relevant information reasonably
requested by such Electing Holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement, in each case, as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Electing
Holders or any such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Electing Holders
of Registrable Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by the Company
to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) 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) in
customary form addressed to each Electing Holder and the underwriters, if
any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Electing Holders and underwriters (it being
agreed that the matters to
12
be covered by such opinion or written statement by such counsel delivered
in connection with such opinions shall include in customary form, without
limitation, as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or
supplemented, including the documents incorporated by reference therein,
of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading);
(v) obtain "cold comfort" letters and updates thereof from the
independent public accountants of the Company (and, if necessary, any
other independent public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each such Electing Holder of
Registrable Securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings;
(vi) deliver such documents and certificates as may be reasonably
requested by any such Electing Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 3(i) and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(q) shall be performed at each closing under any underwritten
offering to the extent required thereunder.
(r) The Company shall cause the Common Stock issuable upon conversion
thereof to be listed for quotation on the NYSE or other stock exchange or
trading system on which the Common Stock primarily trades on or prior to
the effective
13
date of any Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as an
Electing Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of
such Rules and By-Laws, including, without limitation, by (A) such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a "qualified
independent underwriter" (as defined in Schedule E) to participate in the
preparation of the Shelf Registration Statement relating to such Registrable
Securities and to exercise usual standards of due diligence in respect
thereto, (B) indemnifying any such qualified independent underwriter to the
extent of the indemnification of under writers provided in Section 5 hereof
and (C) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules of
Fair Practice of the NASD.
(t) The Company shall use its best efforts to take all other steps
necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
SECTION 4. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 2 and 3 thereof and shall reimburse the Holders for the reasonable
fees and disbursements of one firm of counsel designated by the majority of
Holders to act as counsel for Holders in connection therewith.
SECTION 5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Shelf Registration Statement, the Company shall indemnify and hold harmless
the Purchaser, each Electing Holder, each underwriter who participates in an
offering of Registrable Securities, each person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each of their respective directors,
14
officers, employees, trustees and agents (each such person being sometimes
referred to as an "indemnified party"), from and against any and all losses,
claims, damages or liabilities, joint or several, to which such indemnified
party may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act, or
any Prospectus contained therein or furnished by the Company to any
indemnified party, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the Company hereby agrees to reimburse such indemnified
party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending or preparing to defend or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such Shelf
Registration Statement or Prospectus in reliance upon and in conformity with
written information furnished to the Company by such indemnified party
expressly for use therein.
(b) Each Electing Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Purchaser, each underwriter who
participates in an offering of Registrable Securities and the other Electing
Holders and each of their respective directors, officers (including each
officer of the Company who signed the Shelf Registration Statement),
employees, trustees and agents and each Person, if any, who controls the
Company, the Purchaser, any under writer or any other Electing Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 5(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Electing Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or any
15
Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that,
no such Electing Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Electing Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (hereinafter called the indemnified
party) shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing; however, the
omission to so notify the indemnifying party shall relieve the indemnifying
party from liability only to the extent prejudiced thereby. The indemnifying
party, upon request of the indemnified party, shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others that the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or 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 to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm (in addition to any local counsel) for all indemnified
parties and all persons, if any, who control such indemnified parties within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act.
16
(d) If the indemnification provided for in this Section 5 is insufficient
or unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) 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 and expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
if the indemnified party shall have failed to the prejudice of the
indemnifying party to give the notice required by Section 5(c), 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 or parties on the one hand and the indemnified party or
parties on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the parties
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, on the one hand, or by the Electing Holder or such other indemnified
party, in the other hand, and the parties, relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, the Purchaser and the Electing Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 5 were to be determined by pro rata
allocation or by any other method of allocation that does not take into
account the relevant equitable considerations. For purposes of this Section
5(d), each director, officer, employee, trustee, agent and Person, if any, who
controls the Purchaser or an Electing Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Purchaser or such Electing Holder, and each
director, officer, employee, trustee and agent of the Company, and each
Person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution
17
as the Company. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its written consent. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required
to undertake liability to any person hereunder for any amounts in excess of
the discount, commission or other compensation payable to such underwriter,
selling agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have and shall
extend, or not extend, as the case may be, to any Indemnified Person and the
obligations of any Indemnified Person under this Section 5 shall be in
addition to any liability which such Indemnified Person may otherwise have and
shall extend, or not extend, as the case may be, to the Company. The remedies
provided in this Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to an indemnified party at law or in
equity.
SECTION 6. UNDERWRITTEN OFFERING. The Electing Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Registrable Securities in an underwritten offering in accordance
with the conditions set forth below. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by the Electing Holders of a majority of the
Registrable Securities to be included in
18
such offering; PROVIDED, HOWEVER, that (i) with respect to the investment
bankers and managers, such investment bankers and managers will be selected by
the Company from a list of nationally recognized firms to be provided by the
Electing Holders and (ii) the Company shall not be obligated to arrange for
more than two underwritten offering during the Effectiveness Period. No
Electing Holder may participate in any underwritten offering contemplated
hereby unless such Electing Holder (a) agrees to sell such Electing Holder's
Registrable Securities in accordance with any approved underwriting
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such approved underwriting
arrangements. Except as otherwise set forth herein, the Electing Holders of
Registrable Securities covered by the Shelf Registration Statement selling
under an underwritten offering as contemplated hereby will pay such expenses
as are ordinarily and customarily paid in connection with underwritten
secondary offerings.
SECTION 7. MISCELLANEOUS. (a) OTHER REGISTRATION RIGHTS. From the date of
this Agreement, the Company may grant registration rights that would permit
any Person that is a third party the right to piggy-back on any Shelf
Registration Statement; PROVIDED that if the Managing Underwriter, if any, of
such offering delivers an opinion to the Electing Holders that the total
amount of securities which they and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large as to
materially adversely affect the success of such offering (including the price
at which such securities can be sold), then only the amount, the number or
kind of securities to be offered for the account of holders of such piggy-back
rights granted after the date of this agreement will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included.
(b) AMENDMENTS AND WAIVERS. This Agreement, including this Section 7(b),
may be amended, and waivers or consents to departures from the provisions
hereof may be given, only upon the written consent of the Purchaser or by a
written instrument duly executed by the Company and the holders of a majority
in aggregate principal amount of
19
Registrable Securities then outstanding. Each holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 7(b), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Registrable Securities or is
delivered to such holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(d) PARTIES IN INTEREST. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement.
All the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective successors
and assigns of the parties hereto and any holder from time to time of the
Registrable Securities to the aforesaid extent. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of
law or otherwise, such transferee shall, without any further writing or action
of any kind, be entitled to receive the benefits of and, if an Electing
Holder, be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement to the aforesaid extent.
(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.
20
(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) SURVIVAL. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
COEUR D'XXXXX XXXXX CORPORATION,
By___________________________________
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted
as of the date first above written:
LAZARD FRERES & CO. LLC,
By___________________________________
(Lazard Freres & Co. LLC)
21
